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Revenge Porn Law: Rob Kardashian, Blac Chyna, and Nonconsensual Pornography
On July 5, 2017, Rob Kardashian, of the famous Kardashian TV family, uploaded multiple nude photographs of his ex-fiancee, rapper Blac Chyna, to his Twitter and Instagram accounts.
Did Kardashian violate California's Penal Code section law banning the distribution of "revenge porn?" (nonconsensual pornography)?
As in 38 states and the District of Columbia, California prohibits the intentional distribution of certain graphic photos and videos of another person without that person's consent.
In this podcast, I will discuss whether Kardashian could be found guilty of this crime. Click here to read the full article.
|Aug 01, 2017|
Objection to Leading Question? Try Rephrasing
A leading question is one that suggests the answer sought by the examiner.* For example: "You met with Mr. Williams the evening of July 25th, correct?" (LEADING) vs. "When did you meet with Mr. Williams?" (NON-LEADING).
Leading questions are generally not permitted on direct examination, but are allowed on cross-examination. Young attorneys new to litigation frequently find it difficult to overcome objections to leading questions. In this episode, we'll explore leading questions:
* Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.
|Jun 30, 2017|
Does Law School Prepare You To Be A Lawyer?
After three years of challenging legal education, incoming attorneys graduate from law school eager to take on the challenges of the profession and practice law. But does law school actually prepare attorneys for the rigorsof litigation practice?
In this episode, I'm joined by my good friend and fellow attorney, Avi Ross. We reminisce about old times and recall our experiences entering the profession as new attorneys, the lessons we learned, and impart some tips (and warnings) for new attorneys entering the legal profession.
Check out Justice Navigator: The Ultimate Video Litigation Tutorial for new attorneys and non-attorneys!
|Jun 06, 2017|
Tough Glove: The O.J. Simpson Fiasco
On June 12, 1994, the bodies of O.J. Simpson’s ex-wife, Nicole Brown, and her friend Ron Goldman, were found outside Brown’s condominium in Brentwood, California. In what is considered the "Trial of the Century," O.J. Simpson was ultimately acquitted of the murders.
The most iconic moment of the trial was the fateful decision by Deputy District Attorney Christopher Darden to have Simpson try on two gloves found at the scene of the murder and outside Simpson's house.
The glove debacle, which actually lasted only a couple of minutes, was the penultimate made-for-TV moment. It had all the right ingredients—theatrics, intrigue, drama, and suspense. As with the JFK assassination and 9/11, millions of people worldwide can recall exactly where they were when they watched the doomed glove demonstration.
This episode will cover:
NOTE: This episode contains graphic descriptions of violence and use of profanity. It is not recommended you listen to this episode in the presence of children or if you are offended by descriptions of violence.
|Apr 19, 2017|
Oh No! My Dog Bit Someone: Dog Bite Lawsuits
If your dog bit someone, do not panic. One of the first things you should do is educate yourself about your potential liability to the person injured. Each state has its own laws on the topic, but there are a few common patterns and defenses, which we will discuss in this article. Your best option is to hire an attorney or, if representing yourself, research the law in your state.
Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.
Humans have kept dogs as pets for over 12,000 years. For at least that long, dogs have been biting people. In the United States, there are 70-80 million dogs—that’s almost 1 dog for every 4 people.
Although many bites result in minor injuries, dog bites can inflict serious injury. According to this article by the American Veterinary Medical Association, an estimated 4.5 million people are bitten by dogs each year. Of these cases, roughly 20% require medical attention. The Healthcare Cost and Utilization Project notes that “Common principal diagnoses for dog-bite related hospitalizations included skin and subcutaneous tissue infections; open wounds of extremities; open wounds of head, neck, and trunk; and fractures of upper limbs.”
Dog bites can be very expensive. The average claim rose to almost $40,000 in 2015.
Although rare today, throughout history many states used the "one-bite" rule. Under this doctrine, an owner would not be legally liable injuries unless he or she had knowledge of the dog’s dangerous propensities, such as the dog biting someone in the past. In other words, the owner gets one “freebie” bite.
In modern times, an owner could still be held liable if he or she had knowledge (or reason to believe) that the dog was dangerous. This may be due to the dog’s history, breed, or past behavior.
To prove liability for a dog bite injury under a theory of negligence, the victim must usually prove that the dog's owner/handler had a legal duty to use reasonable care to prevent injuries to others in public and those lawfully on his/her property. The general rule is that an owner owes a duty of care to prevent dog bite injuries to others; however, many states exempt (or limit) liability to people trespassing on the property. Depending on the state, the definition of “trespasser” differs tremendously, and may depend on such factors as whether:
Next, the victim will have to prove that the owner breached the duty by failing to use reasonable care to prevent the attack. As with everything, this depends on the state’s laws, facts of the case, dog breed, size, and history of aggression and prior attacks. It may involve some or all of the following:
As with any action for personal injury, the victim will need to prove that the breach of the duty of care caused the victim’s injuries.
Dog-bite statutes (AKA strict liability)
Many states have dog-bite statutes that impose strict liability for dog bites. Under this much harsher standard, an owner is liable for dog bite injuries even without proof that he or she failed to exercise reasonable care to prevent the attack. In other words, it is not typically a defense that you took all precautions to prevent the attack.
In some states with strict liability, the victim must also prove that—prior to the attack—the owner knew the dog had a tendency to be dangerous (known as having "dangerous propensities"). This may include:
Generally, it is not enough to show mere barking, chasing cars, or even jumping on people.
Common Defenses in Dog Bite Cases
The defenses available to you will depend on your state’s laws. That being said, here are a few common defenses to dog bite lawsuits (note that they may overlap):
Statute of limitations
Statutes of limitation limit the time to file a lawsuit for a particular event or set of facts. Statutes of limitation cut off a party’s right to sue another party after a certain time period. If the victim sued you after the expiration of the statute of limitations, you can move to get the case dismissed.
If you are sued, check to see what the statute of limitations is for dog bite lawsuits in your state. If you have any doubts, contact an attorney and set up a consultation.
Under this defense, the victim was negligent and caused (or contributed to) the victim’s own injuries. Here are some examples:
Assumption of risk
The victim voluntarily and knowingly assumed the risk of a dog bite by engaging in certain conduct. This may include:
The “victim” provoked the dog into attacking. This may include:
Under these circumstances, you may have a defense to assert, even in states with strict liability.
Contact your homeowner’s insurance (or renter’s insurance) agent right away
If you have homeowner’s (or renter’s) insurance, contact your insurance company right away to report the claim. You may also need to submit a written declaration or affidavit. Many policies (but not all!) include liability coverage for injuries caused by your dog—even if the incident did not occur on your property. Most policies require "prompt" notice of a potential claim, so do your best to notify your insurance company right away.
Once you have filed the claim, the insurance company will determine whether you have valid coverage. If the victim files a lawsuit or threatens you with legal action, your insurance company will conduct an investigation, including interviewing the victim, witnesses, and reviewing any photographs and documents presented. It will then determine whether to settle the claim or defend you in a lawsuit.
If you did not disclose your dog on your application, or have a breed that is excluded under your policy, the insurance company may deny coverage. In that case, you will need to consider hiring an attorney or representing yourself.
|Mar 09, 2017|
Protecting the President: The Secret Service
Few agencies are more shrouded in mystery than the United States Secret Service. It even has the word "secret" right in its name!
In this episode, we trace the fascinating history of this federal agency–from its origins as an investigative agency charged with combating the prevalence of counterfeit currency to its present day responsibilities of protecting the President, Vice President, and several other categories of protected people.
Did we mention that President Lincoln was assassinated on the very same day he signed legislation creating the Secret Service?
|Feb 15, 2017|
Unhappiness and Depression Among Lawyers: An Epidemic
According to the Dave Nee Foundation, which promotes awareness of depression among lawyers, “lawyers are 3.6 times more likely to suffer from depression than non-lawyers.” In a February 2016 study published in the Journal of Addiction Medicine, it was noted that: “Levels of depression, anxiety, and stress among attorneys reported here are significant, with 28%, 19%, and 23% experiencing mild or higher levels of depression, anxiety, and stress, respectively.”
Why are lawyers so unhappy? Why aren’t carpenters, plumbers, teachers, priests, or magicians the most unhappy profession? Is there something inherently different about the practice of law? Or is it the profession that attracts people prone to depression?
To tackle these difficult questions, we interviewed Daniel Lukasik, an attorney who raises awareness of depression and helps lawyers obtain treatment.
|Feb 09, 2017|
Net Neutrality: What is it, What is its Future, and Why Should You Care?
With the recent appointment of Ajit Pai to chair the Federal Communications Commission (FCC), the current regulatory regime of net neutrality is expected to be eliminated or significantly curtailed.
|Jan 31, 2017|
The Worst Supreme Court Decision Ever: Dred Scott v. Sandford (1857)
Dred Scott v. Sandford (1857) is widely considered to be the worst decision ever issued by the United States Supreme Court.
Dred Scott, a slave, sued for his freedom on grounds that he had resided in the free state of Illinois and the territory of Wisconsin, thereby making him a free man.
In a 7-2 decision authored by Chief Justice Roger B. Taney, the Supreme Court held that, as a descendant of slaves imported to the United States from Africa, Scott was not (and had never been) a United States citizen. Accordingly, he was considered property, and had no ground to bring a claim in federal court.
The decision further struck down the Missouri Compromise Act of 1820, which had previously outlawed slavery in all future states north of the southern border of Missouri.
At the stroke of a pen, the Supreme Court inflamed the already-explosive debate over slavery and precipitated the Civil War.
|Jan 27, 2017|
Waivers and Releases of Liability: Those Things We Sign But Rarely Read
In one form or another, you're exposed to waivers of liability almost every day. Ever wonder what exactly you're giving up with these contracts? Spoiler alert: A LOT!
In this episode, we discuss:
|Jan 24, 2017|
Do I Need a Prenup? Marriage and Money
A prenuptial agreement (“prenup”) is a contract between two people, signed before marriage, detailing how assets and liabilities will be divided in the event of divorce or death. When this type of contract is signed during marriage, it is referred to as a postnuptial agreement.
When it comes to uncomfortable conversations to initiate with your spouse-to-be, few discussions are more dreaded than that of whether to get a prenup. Will he think I’m greedy and obsessed with money? Will she think I don’t trust her? Will he doubt that I love him?
Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.
Why people shy away from prenups.
Some people worry that getting a prenup kills the romance by planning for a divorce before the wedding, at a time when the couple is madly in love and planning a future and family together. Others believe that a prenup is a self-fulfilling prophecy: Plan for a divorce and that is what you will get.
For others, prenups do not necessarily present a moral or philosophical dilemma. They simply do not believe they will get divorced. This is not all that surprising. People tend to be optimistic—and love and passion sometimes cloud rational decision making. While most people know the frightening statistics—between 40-50% of marriages in the United States end in divorce—no one expects his or her marriage to fail.
Many people never consider a prenup because they believe (mistakenly) that only the rich and famous need them. We’re both broke, why should we waste money we don’t have on something we won’t need? This is another common misconception. As discussed below, prenups can even be drafted to protect someone from his or her spouse’s debts, and to protect the spouse who is less financially stable.
Marriage is like a business. You need to plan how to pay bills; feed yourselves; save money; manage debt; afford a home; and, eventually, start a family (not necessarily in that order). If you do not bring up the “M-word” (money) prior to marriage, it will come up after. I can personally guarantee that.
Even if you ultimately decide not to get a prenup, strongly consider meeting with an attorney to discuss whether a prenup is in your best interests. Many attorneys offer free consultations for that purpose.
Community property vs. equitable distribution states.
There are two different systems for distribution of assets upon divorce—community property and equitable distribution. As of 2017, community property is the law in Arizona, California, Idaho, Nevada, New Mexico, Texas, Louisiana, Wisconsin, Washington, and Alaska (optional). This amounts to about 25% of the population of the United States. In community property states, income, assets, and debts obtained during marriage are split equally (50-50) between the spouses.
In the remaining states (the majority) of the United States, the prevailing law is equitable distribution. Under this system, the judge has broad authority to distribute assets and liabilities in an equitable (fair) manner. Depending on the state, the judge may consider, among other things:
SCENARIOS THAT APPLY TO ALMOST EVERYONE
If you have assets you acquired prior to marriage, you probably want to protect them. This may include bank accounts, stocks, bonds, real estate, vehicles, personal items, jewelry, or a trust fund. This is especially important in community property states.
Here is an example: Peter and Lois are about to get married. They live in a community property state. Peter has $25,000 he inherited from his mother and another $30,000 he saved while working at the local ice cream parlor.
In theory, the assets acquired prior to marriage are Peter’s separate property and Lois would not be entitled to them upon divorce. The problem arises when assets get commingled, making it difficult to trace the source of the original assets. For example, Peter and Lois may:
As the months and years go by, it becomes more and more difficult to determine what portion of the assets originated from Peter’s premarital assets. A well-drafted prenup may protect Peter from a contentious and expensive divorce and from losing a significant portion of his premarital assets.
Depending on the state, a prenup can protect income you earn during marriage and even limit the amount of alimony your ex-spouse can collect.
Here is a simple (perhaps over-simplified) example to illustrate this point:
Tarzan and Jane live in a community property state. Prior to marriage, Tarzan had $10,000 in savings, which he maintained in a separate account throughout the marriage. During their 20-year marriage, Tarzan refused to work, spending every day swinging on trees, eating bananas, and pounding his chest ferociously. With Jane working three jobs, the couple managed to save $200,000. When Tarzan filed for divorce, he kept his $10,000 premarital savings and half ($100,000) of the couple’s joint savings.
I am NOT suggesting that Tarzan should not be entitled to anything because he did not work. Many families consist of one wage-earning spouse, with the other primarily responsible for raising children and managing the household. In some families, a spouse cannot work due to disability, illness, or incapacity. In this particular scenario, however, Tarzan does not appear to be contributing much of anything. A prenup could have eliminated Tarzan’s share of Jane’s wages, or at least limited it (e.g., 15% instead of 50%).
You might be reading this article and thinking, “When I die, my will already spells out who gets what.” Keep in mind that a will can be contested. If the will is successfully contested and invalidated by the court, your assets may be distributed in accordance with a prior will or your state’s intestate succession law. Here is an example:
Martha and George are a childless married couple living in the State of Atlantis. Before they married, Martha had $50,000 that she won in the Atlantis lottery. Martha’s will states that upon death, the $50,000 should go to her sister Abigail. Martha is killed in a duel. George challenges the will on grounds that it did not comply with Atlantis law because it was not signed and there was only one witness instead of two. The judge sides with George and invalidates the will. With no valid will, Atlantis’ intestate succession law applies. George inherits everything, including the $50,000.
Wills can be contested on numerous grounds, including but not limited to:
If Martha and George had negotiated a prenup listing the $50,000 lottery prize as Martha’s separate property, George would not be entitled to that $50,000 upon her death. The moral of the story: Before participating in a duel, make sure your affairs are in order. Just kidding, do not participate in a duel! The real moral of the story: A prenup can serve as a “backup” if your will is found to be invalid.
When negotiating a prenup, soon-to-be spouses anticipate potential points of disagreement and determine in advance what will happen to their assets (and liabilities) if they divorce.
When you are in love and planning a future together, discussing the division of your assets upon divorce can be a very uncomfortable conversation. But if you think that is hard, imagine that same conversation during a bitter divorce proceeding where each of you is represented by an aggressive attorney. Did I mention that each attorney bills at a rate of hundreds of dollars per hour?
In law and love, nothing is certain; however, a well-drafted prenup can eliminate or reduce unpredictability, conflict, and financial loss. The few hundred—or thousand—dollars you save by not getting a prenup could cost you tens—or even hundreds of thousands—in attorney’s fees alone.
COMMON SCENARIOS WHERE A PRENUP MAY MAKES SENSE
Children from a prior relationship can introduce uncertainty and tension into your upcoming marriage. If I get divorced, will my spouse take money that I saved for my kids? If your soon-to-be spouse has children, he or she may have the same concerns.
Whether you discuss it with them or not, your children may also be anxious. Will dad’s new wife get all of my future inheritance through divorce or death? What will happen to Grandpa’s priceless watch?
A properly-drafted prenup can substantially reduce uncertainty, protect your children’s financial future, and allow everyone to breathe a sigh of relief.
A prenup can help protect the business you worked hard to create and grow. Even if you built a successful business prior to marriage, you could still face a claim by your ex-spouse that he or she is entitled to partial-ownership or some interest in the business. This is especially true in community property states if joint efforts were invested to support and build the business.
To prevent or reduce the likelihood of this scenario, a prenup can specify that some (or all) of the business is your separate property—even if your spouse contributes money and labor into the business.
If you have business partners, they will probably be thankful that you did some planning. Imagine this scenario:
Mario and Luigi are general partners in a plumbing business. Mario owns 60%; Luigi owns 40%. Mario’s wife, Peach, files for divorce, and ends up owning half of Mario’s share. Now, Mario owns 30%; Peach 30%; Luigi 40%.
Neither Mario nor Luigi can stand Peach, who does not know a darn thing about business or plumbing, and who left Mario for Toad, a young Salsa dancer. Because the three do not always agree on company decisions, they are often deadlocked, with no one holding a majority. Every month, the brothers must write Peach a check for her share of the business’s income. Mario and Luigi rarely enjoy each other’s company anymore. Mario cries himself to sleep most nights and wishes he had negotiated a prenup with Peach.
Generally, a person is not liable for debts incurred by his or her spouse prior to marriage (again, read the disclaimer!). Nevertheless, if you and your spouse end up commingling your assets (e.g., joint bank accounts, etc.) it may be difficult to determine who owns (or owes) what. Moreover, if you decide to refinance or consolidate your debt, things get even murkier. The last thing you want is to be liable for your ex-spouse’s gambling debts, alimony from a previous marriage, back taxes, and more.
Consider including a provision in the prenup that all debt acquired prior to marriage will remain separate and that each spouse will not be responsible for debts acquired by the other during the marriage.
Each state has its own laws regarding the division (or non-divisibility) of degrees and licenses upon divorce. Degrees and licenses are inherently expensive—often costing over $100,000. They are also extremely valuable because they significantly improve earning potential and employment prospects.
Oftentimes, a person will sacrifice his or her career to financially support a spouse in obtaining a degree or license. This leaves the supporting spouse vulnerable in the event of a divorce. On the other hand, the spouse who obtained the degree will continue benefiting from it for the rest of his or her life.
Here’s another hypothetical: During her marriage to Mark, Cleopatra earned her nursing degree. Most of her tuition was paid for by her parents and some money she inherited from her grandparents. They decide to get divorced. Mark claims that based on their state’s laws, he is entitled to a portion of the nursing degree’s value (in addition to Cleopatra’s future income) because the degree was obtained during marriage.
A decent attorney could have anticipated this problem and drafted a prenup specifying how the degree should be valued and divided upon divorce.
It is not uncommon for a person to sacrifice his or her career to raise children or benefit a spouse’s career. This may include relocating, quitting a job, or giving up a career.
Take this example: Josephine and Napoleon fall in love and decide to get married. Josephine quits her job as an advertising specialist in Los Angeles (with a salary of $80,000 per year) to move to Cleveland and start a family with Napoleon. Before she quit, Josephine was on track to be promoted to junior vice president and get regular increases in her salary. Napoleon just started his career as an architect, also making $80,000 per year. With Napoleon as the breadwinner, Josephine focuses on raising their two children, Genghis and Khan.
Ten years pass, and the couple decides to divorce. Now, Napoleon earns $250,000 per year and has a promising career. Josephine, on the other hand, sacrificed her career years ago and must now start from scratch, probably making significantly less money than Napoleon—and less than she was making before.
Without a prenup in effect, Josephine is at a significant disadvantage and may have a hard time supporting herself.
If you are planning to get married, hopefully this podcast has not scared you away from the altar. Prenups are not for everyone; however, a sensible prenup can protect your financial future, reduce or eliminate uncertainty, and make divorce less contentious and expensive.
Even if you think divorce is unlikely, do yourself a favor and consult with a family law attorney to determine whether a prenup is right for you.
|Jan 20, 2017|
If You Die Tomorrow: Do You Need a Will?
If you died tomorrow without a will, who would inherit your assets? Who would be your children's guardian? What would happen to your remains and who would carry out that unenviable task? How would your debt and final expenses be paid?
Do you really need a will, even if you're broke? What if you just want everything to go to your spouse?
Our guest in this episode is trusts and estates attorney Adam Becker. Adam answers all these questions—and more—to help you plan for the inevitable.
What is a will?
NL: Let’s start with the basics. What is a will?
AB: A will is a legal document that lets you decide who gets what, and at what time after you’ve passed away.
NL: What other terms are there for a will?
AB: Sometimes you’ll hear people refer to a living will. That is a different document that has more to do with healthcare decisions. You will also hear people refer to a trust, and there is a lot of confusion sometimes between what is a will, and what is a trust. The truth is that they’re related documents that usually work together.
NL: You mentioned living wills. What is it called when you simply have a will that deals with your assets, and what will happen to them when you die?
AB: We’d probably call that a testamentary will. That just means when you die there’s this piece of paper that tells people: “Here’s what I want done when I die. Who gets my assets, who is in charge of giving away those assets, who is going to look out for my children,” that’s a guardian named in a will. That’s what you typically would think of in a will that you might see in a movie or in a TV show.
Who needs a will?
. . .
AB: Anybody who has assets needs a will, and certainly anyone who has children needs a will.
NL: A lot of people . . . have said to me, “well I’m broke, I don’t have anything to give.” Or they’ll say, “I don’t care, I want my wife to get everything.” Would you agree that if you’re broke—or if you’re married—you don’t need a will?
AB: No. I think nowadays there are online services that can do a good job of providing just a will very cheaply. Surprisingly, you can also write out your own will. I’ll speak for the State of California where I practice. If you take a piece of paper, and in your own handwriting write it, date it, and sign it, that is a legal document that would express who gets what when you pass away. Now, there’s drawbacks to doing things by yourself, and writing things out can often have mistakes, but I would say it’s better than nothing in some cases.
Bank account beneficiaries
NL: Specifically, for people who just want their spouse to inherit everything they have, do you think it’s important for those people to draft wills?
AB: Well, there are ways around a will. For example, a bank account. I can name my spouse on my bank account, or as the beneficiary of the bank account. Then, when I die, she just shows up with my death certificate and claims the assets. So, we didn’t need a will in order to transfer that asset. I could put her on the deed to my house. I can get around having a will if I want to give everything to my spouse. But if I have other people that I want to make distributions to, or if I forget one of those assets, I forget to put her on one of those assets, then I will wish that I had a will, because that can transfer to her after I die.
NL: What happens if there’s a conflict between the person you listed as your beneficiary, and your bank account, and what’s written in your will? I can’t remember who I listed for my bank accounts. I hope it’s you Olivia, but I probably need to go back and check.
OL: You’re in big trouble if it’s not!
AB: That’s a more complicated question, but I tell people to look out for this all the time. We draft a will, then the next step is to make sure that all our beneficiary designations line up with what we’ve said in the will. Because if there is a difference [and] that company that has the beneficiary designation on file, they are going to get the death certificate when you die, and they are going to say, “Sorry Neer, it says here that your mother is supposed to get this asset. Either go to court and tell us otherwise, or we’re paying this to your mother.”
Preparing a will
. . .
AB: Like I mentioned earlier, there are online services that would help you to prepare a will. Usually they have a series of questions that you answer, and it fills out a will for you, so that would be one way. There are good wills that you can get online. [In California and some other states], you can also write a will yourself in your own handwriting, or you can go to an attorney, and have an attorney assist you through the process of preparing a will, or an estate plan.
NL: When should you consider getting an attorney, versus . . . going to one of these online services, or getting a “fill-in-the-blank” printed form?
AB: If you have children, I would certainly want to run my will by an attorney to make sure it was done correctly; to make sure that they are going to be taken care of by the people that you use; and, that the assets are going to get to them in the way that you want. If you have substantial assets, and by that I think I would say anything over $150,000, I’d want an attorney to review it. But I know a lot of attorneys who will just prepare a will for a very reasonable price, not much different from what you could pay for it online.
The importance of wills for blended families
NL: Let’s talk a bit about blended families where you have children that are the children of both people in the relationship, and then maybe they have children from prior marriages, or prior relationships . . . I want to bring up a hypothetical to illustrate, and flesh out these issues . . . Bob doesn’t have a will. Bob is married to Heather. They have two children together, and Bob has two children from a prior marriage. Bob would like everything to go to his wife, and he figures that’s what will happen. If Bob gets run over and killed by an ice cream truck tomorrow, what happens to his assets without a will?
AB: So, Bob is married, but he’s got two children from a different marriage, and two children with Heather. If he dies tomorrow and he’s living in California, which is where I practice, everything would not go to his wife, Heather. Some people would be surprised to learn that. No will is there, so he can’t say who gets what. California law says that one-third of his assets would go to his wife, and two-thirds would go to his other children.
NL: That’s clearly not what he intended for here . . . Assuming he had drafted a will, how could this have prevented the problem?
AB: With a will, he could choose who gets what in any amount that he wants. Now, there’s some complications with community property and separate property. But just keeping things very simple, in a will, Bob gets to say “This is who I want to have my assets—and here’s the way in which I want them to get them.”
Concerns involving minor children and young adults
NL: Does the age of the children make a difference as far as planning whether or not you should get a will, and what the will should provide?
AB: It certainly does. If you have minor children, they can’t receive the assets until they’re 18 years old. Someone can pay for them, and provide for their needs, but they can’t get the assets until they’re 18 . . . I have a friend I was speaking with, and he told me this story of a client of his who came to him and said, “My son is the beneficiary of a wrongful death lawsuit. His mother had passed away when he was very young because she had been hit by a driver, a city employee who was drunk.” They settled the lawsuit, and now he was going to inherit from the city a couple million dollars. He said, “My son is 17 and a half, and I don’t want him getting all this money, what can we do?” Well, sadly, there’s nothing you can do. The child is going to get that money, because the contract is between the city and the child.
But my friend said, “I met with [the father and child] in the hopes of convincing the child to put some of these assets into a trust, or some other vehicle where the money wouldn’t be spent. Because who wants their 18-year-old to receive a couple million dollars? So he said, “I met with him, and we convinced him the right thing to do was to put this money up in a trust until he’s at least age 25. But his education would be paid for, his health would be paid for, if he needed money for groceries and things like that, that would be available. But he wouldn’t touch the money until he’s at least 25.” At the end of their meeting [the son] said, “Okay dad, that sounds like a good idea, except I want to keep enough money to buy a condo in Vegas and a Ferrari.” That illustrates to our clients why receiving a lot of money at a young age is usually not a good idea for children.
NL: In effect, what you’re saying is that sometimes you want to protect your kids from themselves?
AB: Correct. I always talk about two types of creditors with clients. One, up to a certain age, you want to protect people from themselves—they are their own worst creditor. Then, generally after a certain point, we’re worried about other outside creditors, and there’s ways we can help protect against those. But most people agree that until some age, 25, 30, 35, children are going to need guidance in how their money is spent, and you can set that up with the use of estate planning documents.
. . .
Making sure your wishes are carried out
NL: Let’s say that: Bob’s son, Bobby Jr. . . from a prior relationship . . . [and Heather] have an on-and-off-again relationship—a very tense relationship—because Bobby Jr. and Heather just don’t get along. Bob really wants to make sure that Bobby Jr. is taken care of. What can he do as far as planning, crafting a will that will protect Bobby Jr., and make sure that he gets some money as well?
AB: This is a common question that I hear from persons in a blended marriage, where they have children from a prior relationship. They say, “Adam, how do I take care of my children from that first relationship. I know my spouse . . . [is] not going to take care of them after I go . . . what do I do to provide for them?” There’s a couple things you can do. First, you could give assets directly to those children when you die. So, in your will, you would say, “Upon my death, Bobby Jr. gets X.” But unless you have a lot of money, oftentimes those assets are going to be needed for your spouse.
You could give the assets to your spouse, and just hope that she does the right thing in this scenario and gives them to Bobby Jr., but in my experience, that doesn’t usually happen. Other “good reasons” come up for why Bobby Jr. doesn’t need that money anymore. I’ve found that a simple solution can sometimes be a little bit of life insurance. You buy some life insurance, name Bobby Jr. as the beneficiary upon your death. If you want to be a little more sophisticated you’d put that into an insurance trust. Then, when you die, that money is there for Bobby Jr., and he gets it, he’s paid out. The second spouse can go her way, and provide for your joint children as she sees best.
Wills and trusts: What is the difference?
. . .
AB: A will is just a piece of paper until you die. One of the big differences between a will and a trust is that a will is only effective upon your death. A trust, on the other hand, can be created while you’re alive. It’s created by transferring assets (like a bank account or the title to your home) to the name of the trust. Now it’s funded, it’s called a living trust because it works while you’re alive. A good reason why you might want a will while you’re alive is if you become incapacitated. Then, somebody you’ve named in the trust, called a trustee, can step in and manage your assets for you in the event you’re incapacitated, you’re in a coma. Who can manage the family business, who could sell your home, who could cash out bank accounts, who could provide for you and your family if you’re not able to do that, that’s a trustee. If you just have a will, we have to wait until you die until we can step in and manage those assets.
Who makes your medical and financial decisions when you are incapacitated?
NL: If instead of dying, Bob ends up in a coma or a vegetative state, what happens? Who makes the decisions for him if he didn’t have a will?
AB: . . . If he had a power of attorney that would let somebody act on his behalf in financial matters. If he had a healthcare directive in California they could make decisions for his healthcare. But if he doesn’t have any of those things then somebody is going to have to go to court to get what’s called a conservatorship. It’s expensive, and there’s fees. You’ve got to pay the attorney, pay the court, you’ve got to pay an accountant maybe to prepare an accounting of his assets. A conservatorship would then allow somebody to act on Bob’s behalf, to now make financial decisions, and decisions about his person, about his body, what happens, what kind of healthcare is he going to receive . . . We wish he would have had a power of attorney document, or a healthcare directive, or even a trust to manage his assets.
NL: It seems that whatever money he saved by not drafting a will is now going to cost his family a lot to hire an attorney, and go through this conservatorship procedure—which is not cheap—so it does seem that even though a will is an investment, you’re saving money later on, or saving money for your family in the event that something goes wrong.
AB: Definitely. You’re also saving frustration, from having to wait on the conservatorship to be approved. You’re saving time, and making it much easier for your family to provide for you if you do become vegetative. You’re making it much easier for your family to provide for you if you are in a coma.
NL: How long does it take for you to establish a conservatorship, and what happens to Bob in the meantime? I mean, he’s chilling in the hospital bed.
AB: If everyone gets along, the procedure shouldn’t take too long. But in our scenario, where we had Heather and Bobby Jr., who were at odds with one another, if Bobby Jr. is going to contest this conservatorship, to say that he’s in a better position to care for his father, then [Heather], who is now looking around or something like that, it could take quite a while to resolve this conservatorship matter. So again, if Bob had set these things up ahead of time, there wouldn’t be that issue facing the family.
Planning for end-of-life care and decision-making
NL: Do you want to be kept alive artificially? Do you want your heart to be restarted? Can you talk a bit about what important end-of-life decisions one might want to take into account, and how a will can provide for that?
AB: There’s a lot of important end of life decisions. But I think there’s generally three big ones that people are concerned with the most.
First, what do you want to have happen with your remains? Are you going to be cremated? Are you going to be buried? Do you have specific instructions? I had a friend tell me one time he wanted to be cremated, but then I was to take his ashes and scatter them in center field of Dodger Stadium, to which I laughed. I definitely don’t think that’s possible, but those are the directions he wanted.
[Second] is organ donation. You can say in advance, especially if you’re younger and healthy, “If I die, I want my organs to be donated.” Now, your family doesn’t have to make that decision. Is that something they object to, they would want to do on your behalf? You can just tell them ahead of time.
Third, the end-of-life choice. Do you want to be kept alive as long as possible? Do you want to have your life taken off of life support as soon as they can? Or, like you mentioned, do you have other specific measures? “I want to receive water—but not food.” “I want painkillers—but not something else” All of that you can spell out in a healthcare directive so your family doesn’t have to try and figure it out.
What do you want done with your remains (e.g., burial, cremation, organ donation, etc.)
NL: When it comes to the remains that’s also something to consider. Because I, for example, don’t care. If there’s anything that can help someone—whether it’s my eyeballs, corneas, ears, heart—they are welcome to take it. But I totally understand—and I respect—that for a lot of people, there’s parts of their body that are very personal, and that they wouldn’t want to give up.
There are obviously the eyes and facial features. They do facial transplants now, and that could be very weird for your family, or uncomfortable knowing that your face is on another person. Likewise, for people who have experienced horrific accidents, they have genital transplantations, which I think most people would find kind of weird and would want to make a specification either way in their will. So, I think that’s definitely something you want to include as well, as far as what should be donated, and what should they not take from you.
AB: In a living will, or a healthcare directive, you can be as specific, or as broad as you want. You can just say simply “I agree to all organ donation,” and now your family gets to make those decisions. Or, you can say, “I agree to organ donation, but I want to keep my eyes, and a few other parts too.” So, ahead of time, you can tell your family what you’d like done. We were saying during a break, I think it was Olivia, one of the important things is not to have any surprises. You don’t want to surprise your family with any strange requests once you’ve passed away.
NL: Too late for that, my will is drafted. Actually, Adam, I wanted to ask you . . . You did the will for Olivia and I, and I recall there being a conversation about what parts of the body to donate. Olivia specifically…
OL: Your heart belongs to me!
NL: Okay. Well, what I was thinking was that I recall [Olivia] saying that [she] didn’t want [her] brain transplanted into another person. Adam, is that a real thing? Can they do brain transplants yet? If you don’t want to get in the middle of this lover’s quarrel, I completely understand.
AB: Well, Neer, I don’t know if Olivia is going to want your brain, but whether or not they can do a brain transplant, you’d have to speak with a neurologist. To answer it from the legal perspective, you can put whatever restrictions you want into your healthcare directive.
NL: . . . Let’s get back to Bob quickly. Let’s kill Bob again . . . he’s dead and now there’s no will, so there’s no provision as to what should be done with his remains. Bob wants to be cremated—that’s what was done with his parents’ remains—that’s just what he wants to do. Heather, on the other hand, has strong beliefs that when someone dies they should be buried. Bobby Jr. watched a really cool YouTube video about how some people are being frozen so that in the future—if it’s possible to resurrect them—they are kept intact. Now we have a dispute: There’s Bob’s wish, which is not written anywhere in a will. There’s Heather’s belief that people should be buried. Then, there’s Bobby Jr., who wants to deep-freeze dad. What happens under the law in this scenario?
AB: Well Neer, I’ve had several people tell me that they want to be frozen—like Walt Disney or Ted Williams—when they die. I’ve always said, “That’s fine, but how are you going to pay for it?? I don’t think freezing is free yet, so someone has to pay for that. So, I’d probably say to Bobby Jr., “Unless there’s enough money in this estate to pay for a frozen father, your idea is no good.” Ultimately the answer, as you know with all legal things, is: If you can’t decide, then you end up in court, and the judge will tell you what to do. So, in this case, they’re just going to have to work it out. The family will have to compromise. This is another good reason of why having a will, or a healthcare directive would avoid this dispute.
NL: What happens if they just can’t compromise? Heather and Bobby Jr. each have their own opinions, they try settling, mediating, nothing is happening, they just can’t agree.
AB: Then they’re going to end up in court explaining to the judge why their reason for Bob being buried or cremated is the most important, and the judge will make a decision.
The right time to get a will
NL: In your law practice, when do most people come to see you for a will?
AB: I’ve joked that if we were to ever advertise, we should do it in a travel magazine. Most people come to see me right before they’re going to take a long trip. I guess they’re thinking [that] if the plane goes down, they want to be prepared. The second most common time people come to see me is after somebody they know has died, and now it’s on their mind.
I guess the third most common would be children who are just concerned about the ailing health of their parents; they want to make sure the affairs are in order before anything happens to mom and dad. But really, if we did it right, everyone should do this early. It is much easier to get things in place earlier in your life than to wait at the end when you have more complicated family arrangements, and a more complicated maze of assets.
When you have a child, or are about to have a child is a great time to get your affairs in order. You need to choose a guardian. My wife and I took three years to decide who was going to be the guardian. Now, I don’t care so much that I have children, but before the first one came, we just could not decide who would be the guardian of our children, and made it much more complicated than we needed to.
Before you buy a home is a good time to do your estate planning. Once you own a home, the post-death administration is more complicated because you owned real estate than before you bought the house.
Before you inherit assets is a good time to set up an estate plan that is going to provide for your own family. I’ve also found recently with children going to college away—out of state or in a foreign country—is a good time to have that child set up a very simple will, or to at least give you power of attorney for their own healthcare, and their own financial decisions.
When is it too late to get a will?
NL: . . . Obviously, when you’re dead it’s too late to get a will, and if you’re incapacitate completely, or if you’re in a coma. But is there anything in between where it’s just too late, you just have to wait it out?
AB: One of the hardest areas for us as estate and trust attorneys is determining when somebody has lost the capacity to sign a will or a trust. It’s a very gray area, it’s heavily litigated. To avoid any of that litigation, you want to have documents signed well in advance—so there’s no questions as to whether or not your parents—or you—had capacity.
NL: Can you give an example of when someone has questionable capacity, something that could be challenged in a court of law?
AB: Someone who is not able to make decisions for themselves. They live with the assistance of others, they have a documented diagnosis of dementia or Alzheimer’s. Now, that doesn’t mean they can’t sign a legal document, because they can have moments of clarity. It just means you’re in for a probable lawsuit to try and prove that they did have capacity.
–END OF INTERVIEW—
|Jan 17, 2017|
Defenses to DUI / DWI Cases: Drunk Driving, Drugs, and the Law
Driving under the influence of alcohol or drugs (DUI) is illegal in all 50 states. Some states refer to this as driving while impaired or driving while intoxicated (DWI).
I interviewed Deputy Public Defender Omid Haghighat about the ins and outs of a DUI / DWI case, including potential defenses. Although we covered many common DUI / DWI issues (that may be applicable in your state), parts of this podcast pertain specifically to California law. Please read The Legal Seagull’s disclaimer before proceeding with this podcast.*
Here is a transcript of the interview, slightly edited for reader comprehension and enjoyment:
Types of DUI / DWI charges
NL: Omid, welcome to the show.
OH: Glad to be here.
NL: What are the different types of DUIs? We all know about the 0.08% blood alcohol content level. A lot of people tend to think that’s pretty much the prime ingredient in most DUI convictions. What are the different types?
OH: In any alcohol DUI charge basically you’re dealing with two charges. You’re dealing with one that says that you were driving and you had a blood alcohol level of over 0.08%. You have another charge that says you were driving and you were too impaired by either drugs, or alcohol, or a combination of both, to drive safely. It’s a little more complicated than that, but those are essentially the two types of charges.
Let’s assume that we’re just talking about alcohol right now. Let’s say someone is driving, they get pulled over, they do a breath test ultimately, and they have a 0.14% blood alcohol level, according to the breath test machine. They can be charged with both driving with over a 0.08%, and being too impaired by alcohol to drive safely. If we’re talking about your blood alcohol level we’re talking about having tested it with either a breath test machine, or a blood test. So insofar as you’re using some scientific method to test your blood alcohol level, those are scientific.
When it comes to being too impaired, or rather driving under the influence without the requirement of a blood alcohol level, there are a number of tests that officers use that are not testing your blood, or your breath, but in fact are testing your ability to do certain field sobriety tests, or otherwise. This is all regulated by the National Highway Traffic Safety Administration. Some of the tests that they have designed are said to be scientifically validated. So insofar as those tests are done correctly, and are scientifically validated, many prosecutors and officers will say that those are scientific tests as well.
Getting pulled over: the initial stop
NL: So we’re going to get into this whole area of the field sobriety tests, which is one of the things that most people know about, the whole “touch your nose,” “recite the alphabet backwards,” “try and walk in a straight line,” we’ll get to that. But it sounds like there might be some dispute over whether these tests are all valid, or that they successfully measure impairment. Let’s walk through the entire process. Let’s start with the time when someone is driving a car, they’ve left a bar, or their home, wherever it is that they’ve been having a good time, and they get pulled over. Now, there’s one of two ways this could happen. One is that they get pulled over the way everyone is probably used to getting pulled over, and then there’s the DUI stop. So why don’t we start with that. Take us through it. What happens at that point?
OH: Well I just want to add that sometimes it’s not that they’re pulled over, but sometimes they get into a car accident. Then, when the police officers arrive and do a little investigation they start to realize that maybe one of the individuals in the car was under the influence. So that’s another way that essentially someone can have an officer initiate a DUI investigation.
NL: Let’s start first with the whole DUI stop. The type that many of us in L.A. are used to, where you’re driving and all of a sudden you see a sign that there’s a sobriety checkpoint. What are your rights essentially when you see a sobriety checkpoint ahead? Is it illegal to turn your vehicle around to try to avoid it? I’m not suggesting that anyone should do that, but only to see what are the rights that are available to you as of the time that happens.
OH: Well as far as I know, a DUI checkpoint isn’t like a black hole. If you come within the vicinity you aren’t required to be sucked into its oblivion. If you do turn around, however, an officer can see that, and oftentimes they do have officers in the outskirts of those checkpoints looking for people who are turning around. If the officers do see you turning around, that can raise their suspicions, and they can attempt to pursue you, and see if you commit a Vehicle Code violation, and then pull you over and initiate a DUI investigation. Otherwise, if you drive into the DUI stop—you’re there—and you have to comply with the officer’s requirements.
Suspicion of alcohol / drugs: Police officer initiates DUI / DWI investigation
NL: Now once you’re either pulled over, or you come to a DUI checkpoint, or it’s an accident, there comes a point when the police officer suspects you’ve been drinking, or at least claims to have suspected that you were drinking. What types of questions are they allowed to ask at that point in the investigation?
OH: Well an officer can ask you anything. This is assuming that you’ve come into a legal checkpoint, or if you’ve legally been pulled over. An officer can ask you anything. The kind of questions they’ll ask is:
OH: The “Where are you coming from” is a question meant to see if you’re coming from a bar, and that will make them suspicious. But essentially they’ll ask these questions of anyone if they’re slightly suspicious of a DUI, but they don’t really begin to trigger their DUI investigation, I think, until they see what I consider the Holy Trinity of objective symptoms of drinking.
NL: What’s the Holy Trinity?
OH: I call it the Holy Trinity, they’ll put this in the report:
NL: I have read, without exaggerating, about 5,000 to 10,000 police reports in my career thus far. I strongly believe that there must be some bank that they draw these from, or that they’re copy-pasted, because I cannot tell you how many times I’ve seen this described the exact same way. “I detected a strong odor of alcohol emanating from his person.” Do you have any idea how this happens, that all these police officers tend to describe this in the exact same way?
OH: I have some opinions. I’ve seen this happen, and I think there are two reasons for it. You’re never going to see a police report without these three things, because no officer is going to do a DUI investigation over someone that doesn’t seem like they’ve been drinking alcohol, so you’ll never see that police report. But on the other token, officers need to justify the DUI investigation, otherwise the results of their DUI investigation can be suppressed in what is called a suppression motion. That’s a Fourth Amendment violation motion. Because they can be said to have no reasons to prolong what should have been a routine traffic stop, and initiate a DUI investigation. So it depends on how cynical you are, really.
Reasonable suspicion to pull you over… Probable cause to arrest you
NL: This gets us to one of the main points here. So a police officer needs probable cause, is it, or reasonable suspicion of alcoholic impairment before they resume with any type of investigation, or asking you to submit to testing?
OH: If a police officer pulls you over, all he needs is some reasonable suspicion to pull you over, that you committed some Vehicle Code violation, or that you might be under the influence. Let’s just talk about that. What does it take to be pulled over? Some people get pulled over for very obvious “under the influence” reasons. They are straddling lanes, maybe they’re in between two lanes. Maybe they’re swerving within their own lane. Maybe they’re drifting into another lane. Some of them are speeding, or maybe some of them are just driving erratically. People can be stopped for other reasons. I’ve had many DUI cases where someone was stopped because they had no seatbelt, they had an expired registration, their tail light was out. I even had an individual pulled over because his trailer hitch covered a tiny portion of his license plate number. So once they get pulled over all that’s required is reasonable suspicion.
If the officer approaches the vehicle, and he smells the alcoholic breath, sees red, watery eyes, and he hears slurred speech, that can be enough for him to have further reasonable suspicion that you may be under the influence, and he can initiate a DUI investigation. They have that right. Now they don’t necessarily need probable cause until they arrest you. You’re not technically arrested, according to the police, until the end of a DUI investigation. So while they do need probable cause to arrest you, and take you to the station, the entire process, including the field sobriety test, the questions that they ask you, and even the preliminary alcohol screening breath test that they give you on the field, that’s all part of them establishing whether or not they have probable cause to arrest you, and take you to the station.
Exercising the Fifth Amendment right to remain silent vs. talking to the police
NL: One of our past episodes of The Legal Seagull, Episode 2, You Have the Right to Remain Silent, was about Fifth Amendment rights, the right to avoid self incrimination by not speaking to the police under many circumstances. Do you have the right at the time you’re pulled over to refuse to talk to a police officer?
OH: Absolutely. You obviously don’t want to be a jerk about it, because you’re not going to help your case. No one got out of a traffic stop, whether or not it’s a DUI, or just getting pulled over for a ticket, by being a jerk to the police officer, I can tell you that for sure. But you’re very much within your rights to say, “Excuse me officer, if you don’t mind, I’m going to decline to answer any of your questions.” If the officer thinks that you smell like alcohol, or that you’ve got slurred speech, then he can still initiate his investigation, despite you saying anything. You can remain silent, but that doesn’t mean that he can’t continue his DUI investigation.
NL: Even if you don’t smell like alcohol though, and you were to say to the police officer when he or she asks where you’re coming from, “Officer, I’m exercising my Fifth Amendment rights not to incriminate myself.” Couldn’t the mere refusal to answer a simple question like that be the basis for an officer’s reasonable suspicion that you must have been drinking?
OH: Not in court. If an officer puts in his police report that he pulled someone over because they weren’t wearing their seatbelt, it was late at night so he asked them, “Have you had any drinks?” Then the individual responded that, “You know, Officer, I’m not going to answer those questions, I don’t want to incriminate myself.” Without the other facts, the Holy Trinity, if you will; the breath, the slurred speech, the bloodshot eyes. If he was to initiate a DUI investigation, and take you back to the police station, and let’s say he takes your blood, and you have a 0.15% blood alcohol level, very likely in court that wouldn’t stand up. Because essentially he had no reason, he had no articulable facts to believe that you were under the influence of alcohol. He can’t use your Fifth Amendment right to remain silent as reason that you’re guilty.
NL: The most popular question that’s asked is, “Have you been drinking tonight?” to which it seems like everyone always responds, “I had two beers with dinner, Officer.” At that point, what happens next?
OH: Well, it really depends. Look, the officer has a great deal of authority in that moment. A lot of the better trained officers kind of look into your objective symptoms, just by standing right in front of you, and decide, you know what, I don’t think this person is under the influence of alcohol, and they can let you go. What we can assume for your hypothetical is that the officer is absolutely hell-bent on doing a DUI investigation on you, and whether or not he’s allowed to based on that. So if you do admit that you’ve had drinks, even absent the objective symptoms, that may be enough for him to initiate his DUI investigation.
Field sobriety tests: scientifically reliable and valid?
NL: Now let’s talk about these field sobriety tests, as we discussed earlier. What is the state of the legality of these types of tests, and their admissibility into court in California? I imagine that this might be similar in other states, but as you answer this I’m aware, and the audience should be aware, that you’re speaking about California law.
OH: Well, they’re certainly legal. These are tools in the officer’s tool belt with which for them to decide whether or not you may be under the influence of either alcohol, or drugs, or both. It’s all for developing probable cause that you’re under the influence. They’re absolutely legal, and it really depends on who you ask whether or not they are useful.
NL: Can they be refused?
OH: That’s a good question. An officer will never tell you that these tests are voluntary. However, you may absolutely refuse them in California without any consequence. But just know that if you refuse those field sobriety tests, and the officer does believe that you might be under the influence, you’re pretty much asking for a trip to the police station.
NL: Let’s assume, for purposes of this discussion, that in the first scenario, you agree to do these field sobriety tests. What are the different types of tests, and what is their reliability, or scientific basis if you will?
Horizontal gaze nystagmus test
OH: There is an entity called the National Highway Traffic Safety Administration. They essentially are the ones who are behind a lot of the rules, and regulations, and a lot of the uniform field sobriety tests that happen around the nation, amongst other things. They have spent lots of money, and there has been lots of money poured into them, to scientifically validate certain studies. While there may be many field sobriety tests that people talk about, there’s actually only three scientifically valid field sobriety tests.
The first one is a mouthful. It’s called the horizontal gaze nystagmus test. It’s essentially a test, without getting into too great of detail, where the officer is testing to see if you’re under the influence by looking at the behavior of your eyes as they track a stimulus; sometimes a pen light, sometimes just a pen, that the officer is holding out in front of your face. What the officer will essentially do is he’ll instruct you to stand up straight, put your arms at your side. He’ll hold the stimulus about 12 to 15 inches from the bridge of your nose, and he’ll move it from left to right. He’ll essentially be looking for nystagmus, which is a jerking motion in your eyes. There are a couple of clues that the officers actually look for. In fact, there are six clues that they look for. The science has shown that this is, actually, if done properly, one of the best field sobriety tests for predicting whether or not someone is under the influence.
There are actually scientific studies which lawyers are often trying to keep out of court that say that if it’s done properly, you may even be able to assign a blood alcohol level to certain results of this Horizontal gaze nystagmus test. The problem arises, however, because a lot of officers don’t know how to do it correctly. It requires precision. It requires precision with how far the instrument is held from your face, how far to the side you hold the stimulus, and so on and so forth. One thing that is ripe for cross examination in trial is whether or not the officer conducted the test properly. The science is clear: If they do not conduct the test properly then the results are drawn into question.
OH: The next test is the walk-and-turn. The officer has no obligation to give you these tests in any order. But the walk-and-turn is probably the most commonly known field sobriety test. The walk-and-turn test, the officer instructs you to stand with your feet one in front of the other, touching heel to toe, keeping your arms at your side. Then they tell you to count nine steps, tell you to do a turn. They instruct you on how to do the turn, and then to walk nine steps back. They are also looking for a number of clues. Those clues include whether or not you actually were able to touch your heel to toe on every step, whether or not you actually kept your arms at your side. Whether or not you stumbled, or whether or not you were falling from side to side. How you performed the turn, and in general, whether or not you were able to listen to the instructions.
The point of these field sobriety tests is that they are simulated, divided attention tasks. The idea is that driving is a divided attention task. You’re looking forward while you’re pressing the gas, while you’re also focusing on traffic around you, and trying to look at where you’re going . . .
The idea is that mental impairment, when you’re under the influence, begins to manifest before physical impairment. These tests are divided attention tasks that measure both mental impairment, and physical impairment. In the case of the walk-and-turn, they are essentially seeing: can you follow instructions, and do as the officer told you? (mental impairment). But also, be able to maintain a straight line, and turn without falling over yourself? (physical impairment).
One-leg stand test
OH: The final scientifically validated test is the one-leg stand test. I think this test is really unfair . . . Depending on your physical fitness level, depending on whether or not you’ve had any injuries, this test could be very difficult to perform, even for a sober person. Essentially, one-leg stand is, you’re asked to stand with your feet together, your hands at your side, and you’re asked to lift your leg up at least six inches, and point your toe forward.
Some officers will ask you to count to 10, some officers will ask you to count to 20. They instruct you if you put your foot down to just lift it back up and resume counting. Then, after that’s done, they’ll ask you to do it with your other foot. The idea is that they’re looking to see: Can you follow instructions, are you using your hands, despite the officer instructing you not to? Are you swaying from side to side? Are you able to count while holding your leg up, and pointing your toe forward, a divided attention task. There are a number of clues, and those clues have to be marked down, and noted properly, because that’s the only way this test has been scientifically validated.
Those are the three scientifically validated tests. Again, there are many things that can make these tests unuseful in a court of law, or for the officer. For example, if the test is not done in the right circumstances. If it’s not done on level pavement. I had a case where the officer had my client do a field sobriety test on a hill. Of course, he didn’t write that in his police report, but when he wrote the location of where he did the test, I looked it up on Google Maps and I saw that it was a hill. I showed him the map on the stand and asked him, “Isn’t this a hill?” Needless to say, that officer was a little red in the face, because it was a hill, and that absolutely affects your ability to do these tests properly.
In addition, whether or not you’ve had an injury can affect whether or not you do these tests properly, and whether or not the results are actually valid. Especially if you’ve had a head injury, like in the example of getting in a car accident. Obviously, if there’s a car accident, and there’s a suspicion of drunk driving the field sobriety tests are done, and that head injury can cause you to fail all the tests even if you are sober.
If the officer does these tests correctly, and in the correct circumstances, then what the National Highway Traffic Safety Administration says is that these three tests are scientifically validated to show if someone is too impaired by either a drug or alcohol. These are tools that the officer uses to form an opinion.
Now if the officer can say, or an expert can say, that they are scientifically validated, that just helps the jury consider the officer’s opinion with respect to those tests. It doesn’t change whether or not they’re allowed to be heard in court. With that said, it doesn’t need to be a scientific test to inform an officer’s opinion. But if it’s not a scientific test, then defense attorneys oftentimes will use that to say, “Well, if this test isn’t scientific, why are we using it to convict a man of a crime?”
The “recite the alphabet backwards” test
NL: So where does this leave the other tests? What about the recite the alphabet backwards test? Any scientific validity for that?
OH: Absolutely not. I think that’s one of the most unfair tests that you can have, because some people don’t even know the alphabet. No, but seriously, it’s a difficult test for a sober person to do. Try it right now. Try to recite the alphabet backwards. You’ll probably do it slowly, and the officer will probably be able to write things that make you look like you’re doing it slowly, and then say in court that you were probably under the influence of a drug or alcohol.
OH: There’s another test that’s commonly used called the Romberg test. You stand with your feet together, hands at your side. You close your eyes, and you tilt your head back, and count to 30. What the officer will tell you is that you want to estimate 30, and then tell the officer when you believe you’ve reached 30. The officer has a stopwatch right there, and he’s also finding out what 30 seconds actually is. The idea is, depending on what your jurisdiction is, or what the officer is using in his consideration, if you complete the test at plus or minus five seconds of 30 seconds. Sometimes, some officers believe 10 seconds of 30 seconds, then you’re within an acceptable range.
But if you, for example, tell the officer 45 seconds have gone by, but really you think it’s 30, probably you’re under the influence of some depressant. However, if you’re on, for example, a stimulant, like if you’ve done lots of cocaine, and then you get pulled over, you’ll probably count 5 seconds, and then you’ll be like that was 30 seconds. Then the officer will just look at you funny and be like, “This guy is probably under the influence of a stimulant.” So, the test, while it’s not scientifically validated, can help inform them of the type of drug that they’re on, even if it doesn’t mean that they’re scientifically validated.
NL: What about the “touch your nose and stick your tongue out,” or whatever it is?
OH: The “touch your nose” is commonly used . . . it’s another divided attention task, because you’re switching arm to arm, and attempting to touch your nose with your eyes closed, and your head tilted back. Again, if it’s not scientifically validated it doesn’t mean the officer can’t use it to form his opinion, and it’s doesn’t mean the officer can’t testify to it in trial, it’s just a matter of what weight the jury gives it at the end of its determination.
Breathalyzer (preliminary alcohol screening test)
OH: In California, unless you’re on DUI probation, you don’t have to do the preliminary alcohol screening device breath test at the scene of the incident, whether it’s being pulled over, or a car accident. The officer in fact has to admonish you that the test is voluntary, whereas, as I said before, they don’t admonish this for the field sobriety test.
Now understanding that, if you don’t do the preliminary alcohol screening device the officer is likely going to take you to the police station, and ask you to do one of the required by law, at least in California, breath or blood tests.
It’s completely up to you whether or not you want to do it. Some people make that choice, some people choose otherwise. Now, the preliminary alcohol screening device is probably the size, depending on the actual device, a little bigger than your fist, maybe a little bigger with its battery pack than that. The officer has it in his vehicle. It’s considered a field sobriety test by officers, meaning that it’s not considered a chemical test. However, the technology that it employs to determine your blood alcohol level is the same as the machine at the station, which is much bigger, much heavier, and a little more technical.
The idea behind a breath test is actually interesting. Because the idea is you’re breathing into a machine, and it’s determining how much alcohol you have in your blood. Without getting too detailed into the science of it, essentially these little alveolar sacs in your lungs can emit some level of alcohol from your bloodstream. There’s a partition ratio, essentially a ratio of the amount of alcohol that’s emitted into your lungs, compared to how much alcohol . . . in your blood . . .
. . .
When you breathe into the machine, that tiny amount of alcohol that’s in your deep lung air gets multiplied by, sometimes the number is 2,100, and that’s how they determine how much alcohol is in your blood. That’s essentially the idea of the machines.
. . .
Breathalyzers for marijuana
NL: Can [these breathalyzers] also detect marijuana, other drugs, or just alcohol?
OH: Those devices are essentially designed to test ethyl alcohol. That’s a chemical in alcohol. What happens is when you breathe into these machines there’s a fuel cell inside of the machine, and it responds to a number of chemicals, one of which is ethyl alcohol. It creates a charge, and the strength of that charge then indicates through a complicated algorithm, what your blood alcohol level is.
NL: I’ve been hearing about field tests now that are done to detect marijuana. Do you have any idea how those work?
OH: Yes. Essentially, what they do is they have a bag of Funyuns, and they hold it in front of you. If you cannot resist the Funyuns then they have determined that you are under the influence of marijuana.
Actually, it’s not like that at all. This is a brand new approach—certain law enforcement agencies are testing it out. There has been to date no way to test whether or not someone has marijuana in their system. In the field, they’re applying this swab . . . they swab your cheek, and they test the cheek cells, and they determine whether or not you may have marijuana in your system. Not a lot of law enforcement agencies use this, and as of now it’s nothing more than a tool for determining probable cause, whether or not you might be under the influence of marijuana. The ultimate tool is the blood test, sometimes the urine test.
NL: Before today you had told me some really interesting things about the marijuana test, how it might be a little bit less than scientific in determining impairment.
OH: Yes. Absolutely. The marijuana test is a very frustrating test for me as a criminal defense attorney. It essentially can’t show a lot depending on the test results, other than this is a chronic smoker who may or may not be high at the time of being tested. When your blood is tested for marijuana, it’s tested for two things . . . an active THC ingredient, and an inactive THC ingredient.
[The inactive THC ingredient is] called carboxy-THC, it’s a metabolite. The metabolite is like ashes to the fire. It can show that you have smoked maybe as recently as that same day, or two or three weeks prior. It’s a number that’s measured in nanograms per milliliter. Certain law enforcement agencies will look at that in determining whether or not someone might have been under the influence of marijuana.
Then there’s the active ingredient . . . most laboratories will only test the number of that active ingredient from 2 to 25 nanograms per milliliter. That active ingredient can show particularly if you have marijuana in your system, but not that you’re under the influence of marijuana. I want to make that distinction clear. Because just like alcohol, you can have alcohol in your system, but not be too impaired to drive, which is essentially the legal standard in California. What that means is there is no way to look right now, according to the scientific evidence, at the amount of active THC in your blood, and determine that you’re too high to drive essentially. What means, again, for people who are chronic smokers can be pretty bad. Let me give you some scenarios.
Let’s say you’re a medical marijuana patient, which is legal in California, and you smoke marijuana every day. Let’s say you smoke on Wednesday night to go to sleep because you need it to go to sleep. You wake up the next day, you feel fine, and you drive to the store, and for some reason you’re pulled over. Maybe because you’ve had marijuana in your car, from purchasing it from the dispensary, your car smells like marijuana. The officer says: “Have you had anything to smoke,” and you say, “No.” Let’s say the officer sees some other things that he thinks might be indicative of you being under the influence of marijuana. Understand that in this hypothetical, you’re not under the influence of marijuana—the last time you smoked was the night before.
He can take you to the station, he can do a blood test. Essentially what can happen for a chronic smoker is a very high result of the marijuana metabolite, the inactive ingredient, and a tiny, yet measurable active THC in your system.
The reason for that is that if you’re a chronic smoker the scientific studies have shown that chronic smokers can have a tiny amount of active THC in their blood constantly, because it kind of hides in their little fat cells, and is constantly being released. You may be charged with driving under the influence, and you may have to go to trial in order to prove your innocence because you’re a chronic smoker. That’s just the state of marijuana science right now when it comes to driving under the influence.
There is no per se limit in California; however, other states do have a per se limit. I know Colorado does, I know Nevada does. In fact, Nevada has one of the scariest per se limits, and I’ll explain why. Because they have a per se limit for the active THC, but they also have a per se limit for the inactive THC.
What that means is if you are a chronic smoker, and you smoke on Wednesday night, and then on Thursday you don’t smoke, and then on Friday you drive from California, where you were legally allowed to smoke, to Las Vegas. If you are pulled over and the officer suspects that you may be under the influence of marijuana, even though you are not, he can make you do a blood test, and you can be charged and convicted with a marijuana DUI because of the inactive THC that has been in your system from the marijuana you had been smoking even up to weeks prior. It’s a scary thought.
NL: What is the deal with people who are chronic pain patients, either cancer, or any other disease, and they have a prescription for narcotic pain medications like oxycodone, Norco, Dilaudid—very powerful narcotics that in some ways impair your ability to drive . . . ?
OH: Well, California is clear, and I imagine this would be the case in the rest of the nation. Just because you have a prescription to take a certain medication . . . doesn’t mean you have an absolute defense to driving under the influence of that drug. In fact, many of these medications are very clear: “Do not operate heavy machinery or drive.”
Chemical sample at the police station: blood vs. saliva test
NL: Let’s assume that all this has happened already. You’ve been pulled over, talked with the police officer, done the field sobriety test, the breath test, and the officer has decided not to let you go, he has decided it’s time to take you to the police station. What happens when you get there? What else can they do to you there, and what are your rights in the police station?
OH: If the officer determines there is probable cause to believe you are under the influence of a drug or alcohol, he can take you to the police station . . . You need to provide a chemical sample. That could be in the form of a breath test, or if you like, you can do a blood test. If they suspect you of drugs and alcohol, or just drugs, they very likely will require you to do a blood test.
NL: Is there a difference one way or the other over the accuracy, or how quickly it will show up in your blood, versus your saliva or urine?
OH: No. The idea behind the breath test is it is measuring the current blood alcohol content. One of the main real advantages of taking a blood test is that you can retest that blood at a later date if the law enforcement agency saves a sample of that blood. In California, they are required to do so at your request, and oftentimes many police stations will do so automatically. This matters, because . . . [t]hey are taking your blood, and oftentimes what they’ll do is they’ll put a preservative in your blood to make sure that the blood alcohol level doesn’t diminish. They’ll put the preservative in your blood, and then they’ll test it at a laboratory.
In fact, in Orange County, a lot of DUI convictions had to be overturned because they found that the laboratory that was testing blood for alcohol was doing so incorrectly, and with incorrect measurements by mistake. You’re really trusting this law enforcement laboratory to tell you if you’re under the influence of alcohol. So, it’s great to be able to have an independent laboratory test your blood, and test if there’s any irregularities that may show that this blood alcohol level is, for example, an anomaly.
The flip side is if you take the blood test, you’re spending the night at the station, because they can’t determine whether or not you are too impaired, or your blood alcohol level in general right away, so you have to stay the night, if that’s okay with you. I’m sure it’s not.
OH: The breath test is a really simple test. You essentially blow into it twice. The reason you have to blow into it twice—I might have explained it before—is they need to ensure that the result is not an anomaly. Actually, in California, there are special regulations as to how the breath test needs to be administered, and how the machine needs to be maintained and calibrated. The reason it’s required for them to give you two tests is:
Let’s say there’s some spit, or maybe you have a cavity that has been holding some of that alcohol you drank an hour before. The reason there can be an anomaly in a chemical breath test is because you may have some alcohol in your spit. You may in fact have some reflux disorder that causes alcohol from your stomach to come up through your throat, and then enter the machine, and essentially give too high of a reading, a falsely high reading. You have to blow twice, and you have to wait two minutes in between each blow. In California, if the results are more than 0.02 points away from each other, then that test is said to be essentially invalid.
Refusing a chemical test
NL: Do you have the right to refuse a chemical test, or a blood test, at least in California?
OH: This is the point where you start to have no choice. Before you didn’t have to answer the officer’s questions, you didn’t have to do the field sobriety test, and you didn’t even have to do the preliminary alcohol screening device. But once you’re at the station, the officer asks you, “Do you want to give a blood or breath test?” In California, and I’m sure many other jurisdictions, if you refuse to give that test that results in an automatic one-year suspension of your driver’s license. So, you essentially don’t have a choice. In fact, in California if you’re charged with a DUI, and they found that you did willfully . . . you can have a mandatory jail enhancement as well.
In order to refuse—it’s actually quite interesting. They have to fully advise you of your rights before you can be said to have refused. They have to tell you that you have choice between a blood or a breath test. Unless they suspect drugs, then you only have a choice of a blood test. They have to tell you that you don’t have the right to an attorney at this point, and that if you don’t submit to the test if can be used against you in court.
They have to tell you that not submitting yourself to the test can result in a mandatory fine, or imprisonment. They have to tell you that not submitting to a test can result in a one-year license suspension. This is just in California. But the idea of fully advising someone of their rights to refuse is, I think, nationwide. If you are not advised of all these things, then you can’t be said to have willfully refused . . .
Potential defenses to a DUI charge
NL: Let’s assume you’ve had your breathalyzer test, spoken with the police officer, maybe even had some field sobriety tests, and the police officer has determined there is a good reason to bring you down to the police station to do further testing. What is the evidence that can be used against you in court?
OH: In court if you truly believe that either you’re not too impaired to drive, or that you don’t think the state of the evidence should be able to convict you of such a crime, and you decide to take this to trial, essentially you have two hurdles in California to overcome. Like I said before, there are two charges for every DUI that includes a blood alcohol level. There is:
Defining the term “under the influence”
OH: For the purposes of the jury, “under the influence” doesn’t mean “I could feel the effects of the alcohol,” it actually has a very specific legal definition.
In California, the definition [according to California Criminal Jury Instruction 2110] is that: “A person is under the influence if, as a result of drinking an alcoholic beverage . . . and/or taking a drug . . . his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution a sober person, using ordinary care, under similar circumstances.”
Essentially, that’s the standard that the jury has to decide whether or not you’re too impaired. At court, all the evidence we talked about today is going to be used against you. Every single piece from the reason you were pulled over, to the smell of an alcoholic beverage on your breath, slurred speech, and the bloodshot eyes, to the results of the field sobriety test, the preliminary alcohol screening test, and finally, the results of your breath and/or blood test.
Per se limit: 0.08% BAC
It’s important to note, and this has happened to me and my colleagues often. You only need to be convicted at a jury trial of one of those to be convicted of a DUI. What that means is: You can give a blood test, and it could come back with your blood alcohol level being 0.15%, but for some reason your tolerance is such that you’re able to be 0.15% and not be a danger to society, or to the community because you’re able to drive so safely, and your brain is able to operate so well.
If that’s the case, you can still be convicted of the DUI because your blood alcohol level was over 0.08%, even though the jury finds that you’re innocent of driving under the influence. It’s wild, and it does happen. Jurors do come back with that verdict, and unfortunately you still get convicted. The reason for that is because I think that the scientific evidence is important. The blood alcohol level is important because a lot of what is being used to prove that you’re driving under the influence, as opposed to driving with 0.08% or over, is subjective to the officer doing the tests.
While the officers will never admit on the stand that they are being subjective, they really are. Every officer performs these tests differently; every officer has a different idea of what these tests are showing. It can be quite abstract for a juror to wrap their head around when they’re listening to an officer spout off all the different clues that were exhibited in the horizontal gaze nystagmus test. Throughout many of my trials the moment the word horizontal gaze nystagmus test is uttered at least one person starts to fall asleep, if not more. So it’s not only difficult for them to grasp, it’s also very boring stuff, so that’s why a lot of jurors will hang their hats on the 0.08% or higher.
Challenging DUI / DWI test results at trial
With that said, at every stage there is a way to discuss potential weaknesses of these objective symptoms, or the field sobriety test. But specifically, there’s also a way to show that the machines themselves are not operating correctly.
Were machines properly calibrated and used?
As for the preliminary alcohol screening device, and the same for the breath test at the station, there’s a number of ways that defense attorneys bring up in court to challenge these devices. One of them is that they’re simply not accurate. The idea is let’s say you are a 0.05% blood alcohol level, that is your actual blood alcohol level, and you blow into a machine that is not properly calibrated, it can give an incorrect result. It may report 0.09% blood alcohol level.
In California, and I’m sure many other places, under Title 17 there’s a requirement that they calibrate these machines either, I think, every ten days, or 150 uses, something along those lines. So they are required to calibrate them quite often or rather accuracy-check them quite often. If they’ve gone for more than ten days at a time, or 150 uses without being accuracy-checked or calibrated, that could be something attorneys use in court to discuss why the results may be unreliable.
In general, there’s a jury instruction that if the machine, its maintenance, or its operation are not compliant with the California Title 17 requirements then you can question the results of that machine.
Non-compliant testing procedures
OH: . . . [A]nother way these tests can be challenged is if there’s no 15-minute observation period from the time the officer sees you to the time you give a breath sample, then they are not being compliant with Title 17 . . . as we discussed before, you may have acid reflux, you may have just vomited, you may have had an alcoholic drink in the middle, in the interim 15 minutes. If that’s the case, then you can’t be sure that mouth alcohol isn’t providing a false reading in that breath test. That’s another requirement that California has, and I think other places follow suit.
In addition to that, each test has to be done two minutes apart. There needs to be a certain volume of air that is blown into the machine. There are many, many things that criminal defense lawyers will try to look for to see if the tests are being done properly, and that’s just the tip of the iceberg for the breath test.
The rising alcohol defense
OH: Another defense that a lot of attorneys will use in court, and it’s quite interesting, is the rising blood alcohol defense.
[Let’s say] you go to a bar, you haven’t had anything to drink. Let’s say you just down two shots of whiskey. Then your friend is like, “We’ve got to go to this next bar across town.” You’re thinking, “Well, I just had two drinks, but I feel absolutely fine.” Then you get in the car, and you get pulled over. The officer smells alcohol, looks at your eyes, maybe hears something in your speech, and decides to begin a DUI investigation. You give a preliminary breath test, and the results are something like, let’s say 0.08%. Then, you go to the station, and you give another breath tests, and the results are 0.10%.
. . . [T]he criminal defense attorney will likely hire an expert . . . in how your body metabolizes alcohol. What an expert can oftentimes effectively argue is that from the moment you took those drinks, to the time of driving, your body was metabolizing the alcohol, and so your blood alcohol content was rising. When you got pulled over, you may have been somewhere at 0.07% or 0.06%. But the from the time you began the DUI investigation, which could sometimes take 20 to 30 minutes, to when you gave the preliminary alcohol screening device, you were no longer driving, but your body was metabolizing that alcohol.
When you gave the breath test at the field, it became 0.08%. Then your body was still metabolizing that alcohol on the way to the station, which is shown by the fact that when you go to the station—without having any drinks in the meantime—your blood alcohol level is now 0.10%. There is a blood alcohol curve that even the People and the prosecutor’s experts will draw, that shows the way that you somehow metabolized that alcohol.
Sometimes criminal defense attorneys can secure acquittals by drawing doubt as to whether or not you ever had a 0.08% blood alcohol level while driving, or if that level was only achieved while you were outside the car being investigated. Now, of course, a lot of people don’t like this defense because the person is still drinking and driving. But the law is clear: Were you driving with a blood alcohol level of 0.08% or higher?
Despite all the challenges attorneys make, despite all the defenses they have, and how charming (not myself obviously) but other criminal defense attorneys can be in the courtroom, if the evidence is there—the jury will convict. Jurors for the most part, after being properly selected, really are able to sift through all of that and just see if there’s enough evidence. That’s what it’s all about. If someone is acquitted at a DUI trial, it’s generally because the state of the evidence is just not good enough to convict a man of a crime. That’s really what we’re dealing with. There needs to be proof beyond a reasonable doubt. I think that’s one of the great things about America is that we require this great amount of proof before we take away someone’s liberty.
. . .
NL: Omid, thank you very much for taking the time to come on the show. It was great having you. A lot of very valuable information.
OH: Absolutely. I was happy to be here. I love your show, I’m an avid listener.
–END OF INTERVIEW—
* This is not legal advice, is not a substitute for the services of an attorney, and may or may not apply to the laws and procedures in your jurisdiction. We do not recommend that you represent yourself for a DUI / DWI or any other criminal charge.
|Jan 12, 2017|
OBJECTION! A Guide to Courtroom Objections
In large part due to Hollywood's sensational portrayal of courtroom dramas, most people have a very distorted understanding of how courtroom objections work. In this episode, we go over the most common objections, using actors to play the different court roles (e.g. attorney, witness, judge, etc.).
Are you a new attorney or non-attorney seeking to represent yourself in court? Check out Justice Navigator!
|Jan 04, 2017|
How to Write a Great Demand Letter
A demand letter is a document that gives formal notice that you are considering legal action. Most demand letters contain a demand for money or some other form of remedy.
Demand letters are typically written by attorneys. However, non-attorneys (known as pro se or pro per parties) can write their own demand letters, as long as doing so is not prohibited by state laws or court rules.*
In this podcast, I will explain the following in detail:
If you are serious about writing a persuasive, effective, and professional looking demand letter to help you successfully resolve your dispute, download The Legal Seagull’s free guide How to Write a Great Demand Letter by clicking here. The downloadable guide includes a high-quality, realistic sample that you can use to help you in writing a demand letter.
WHY WRITE A DEMAND LETTER?
If you are involved in a legal dispute, your first inclination might be to file a lawsuit. However, doing so without first attempting to resolve the dispute may be a huge mistake. Writing a persuasive and professional-looking demand letter may accomplish the same–or even better–results than a lawsuit, without the risks and expenses of taking your case through trial.
Think about it this way: If you can get paid (or obtain something else you want) by spending 30-60 minutes writing a letter, rather than spending many hours and dollars pursuing a lawsuit, is that not worth the effort?
There is no guarantee that your opponent will read your letter and immediately mail you a check; however, often enough, demand letters start a dialogue, which can lead to resolving your dispute without the need to file a lawsuit.
Believe it or not, your opponent might not even realize that you have a grievance and are considering legal action! And, if your opponent knows, he or she might not take you seriously until you send a stern demand letter detailing your allegations and claims for damages.
Sometimes people try to ignore a legal dispute, hoping that it will simply go away. Occasionally that happens and they are lucky, but often enough, the dispute snowballs into a lawsuit. No one wants to be sued, and receiving a demand letter is not something most people can afford to ignore.
If your grievance is against a company, your demand letter may trigger management to take your demands seriously and contact the company’s lawyers and liability insurance carrier. If your claims appear strong enough, this could contribute to an early settlement of your claim.
THINGS TO KEEP IN MIND WHEN WRITING YOUR DEMAND LETTER
Writing a great demand letter is an art—not a science. Here are a few things you should consider when writing a demand letter:
Be respectful and polite.
No matter how much you dislike your opponent, there is no reason to resort to nastiness. The whole point of writing a demand letter is to resolve the claim without having to go through a lawsuit.
Put yourself in your opponent’s shoes. Imagine this: You come home after a long day of work and grab your mail. After opening up a few bills, credit card offers, and ads, you unexpectedly come across a nasty letter from someone who claims you breached a contract. The letter is loaded with aggressive threats and foul language, and barely contains any supporting facts. Are you likely to respond well? Would you be inclined to reach for your checkbook and mail back a check? Probably NOT!
Now imagine this: You open up a letter that is professionally written, polite, and logically explains, with supporting facts, how you breached the contract. Would you be more likely to take the letter seriously and try to resolve the dispute? Probably!
You are more likely to resolve a claim by being respectful, polite, and assertive than by making hostile accusations and being a jerk. It is best to start off with a positive tone. You can always take a harsher stance later on, if necessary. For example, if your opponent does not respond to your letter after a reasonable time, or refuses your demands, you can consider writing a more forceful demand letter or even filing a lawsuit.
Make your letter appear professional.
Type up your demand letter on a computer. Or, if you are old-fashioned, a typewriter will do. Include your contact information in the letterhead so your opponent can contact you.
Do your very best to use proper grammar and spelling and to make the letter appear as professional as possible.
The demand letter needs to convey seriousness and competence. If you are not comfortable with your writing abilities, have a friend or family member help you write it.
Know your audience.
Depending on your opponent’s education, training, and level of sophistication, you may want your demand letter to be more—or less—detailed. Likewise, your choice of language should be adjusted accordingly.
You should also take into account your relationship with your opponent. Is this someone you want (or need) to maintain a favorable relationship with? Do you want to continue doing business with your opponent in the future? Is it a member of your family? All this needs to be taken into account when deciding what tone to use in your demand letter.
Keep it short but sweet.
There is no ideal length for a demand letter. The length depends on your writing style, how long the dispute has been going on, how complex the facts are, and how much you feel you should divulge in your letter. That being said, in the modern world of smart phones, tablets, and other digital devices, attention spans tend to be very short.
Often in law, as in life, a short letter that gets to the point without too much fluff and blabbering gets better results than the opposite. When writing your demand letter, try to keep it between 1-3 pages, unless you feel you need more to get your points across.
WHAT TO PUT IN YOUR DEMAND LETTER
Now that we have covered the basics, we will get down to the nitty-gritty of writing your demand letter:
Start by recounting the history of your dispute.
Even though you might remember the facts of your dispute, your opponent might not. Or, if he or she does, their recollection might be very different than yours. A demand letter is a great opportunity to relay your version of the facts.
The factual history should discuss the incident, event, or contract that forms the basis of the dispute. What happened that brought you to this point? You do not have to write a novel about it, but you should make it detailed enough to support your claims. Be sure to include any attempts you made to resolve the dispute, such as letters, e-mails, conversations, or settlement offers. Remind your opponent how reasonable you have been.
Include facts and legal contentions
You do not need to include EVERY fact and legal theory you can think of; however, it is generally helpful to recount the key facts and the causes of action you are considering (e.g., breach of contract, personal injury, negligence, defamation, etc.). Some demand letters spell out the relevant elements of each cause of action and facts to support each. It all depends on how much you want to divulge at this early point and what you think would best accomplish your goals.
Recite your damages.
“Damages” refers to the sums of money you claim for the harms you incurred or will incur in the future. If you are demanding money (or something else) to resolve your dispute—which is the whole point of writing a demand letter—it usually makes sense to describe the damages you incurred and what you believe you will suffer in the future.
Try to be as specific as you can with the damages. However, sometimes damages are difficult to quantify. If that is the case, do your best to be as specific and accurate as possible, and state in the letter that you are still working on calculating your damages.
Do not forget to explain how your opponent’s conduct caused or contributed to those damages. Unless you do a good job explaining how your opponent caused your damages, do not expect him or her to write you a check!
Clarify that your investigation is ongoing.
Make sure to state in your demand letter that you are still investigating the facts and that the letter does not contain a full recitation of the facts and damages you sustained. Moreover, write that you reserve the right to state additional facts and damages as your investigation continues. That way, if your understanding of the facts changes, or you realize you suffered additional damages, you could argue that you reserved the right to make changes in your original demand letter.
Demand preservation of evidence.
It is illegal to destroy evidence when one knows or believes that a lawsuit has been filed or is likely to be filed; however, do not assume your opponent knows (or respects) that!
In a perfect world, you would not have to demand that your opponent preserve key evidence. Nevertheless, if you believe your opponent possesses physical evidence, documents, or electronic media that are capable of being “misplaced,” altered, destroyed, or deleted, be sure to remind your opponent to preserve all evidence until your dispute is resolved or litigation is completed.
If you know of any specific evidence in your opponent’s possession that you want preserved, make sure to describe those items specifically when writing a demand letter.
Explain why it makes sense to resolve case.
If your opponent has not been sued before, he or she might not know the costs and risks of allowing a dispute to snowball into a lawsuit. Explain why it makes sense to resolve your dispute without dragging it through the court system. To successfully settle your dispute, you need to show your opponent what is at stake.
You could include the following:
You want your opponent to receive your letter and immediately understand the personal, professional, and financial consequences of failing to properly address your claims.
Consider setting a deadline.
There is a difference of opinion among attorneys as to whether you should give your opponent a deadline to respond to your demand letter. Some attorneys believe that a deadline creates a sense of urgency; others think that deadlines only irritate your opponent and make settlement less likely.
It is up to you to evaluate the facts of your case, your opponent’s personality, your history of dealing with your opponent, and whether it is in your best interest to set a deadline. If you set a deadline, make sure to follow through if your opponent fails to respond. If you do not receive a response by the deadline, be prepared to send a follow-up letter or file a lawsuit.
If the statute of limitations is approaching for your lawsuit, be sure to set a deadline that leaves you enough time to file a timely lawsuit if you are unable to resolve the dispute with a demand letter.
WHAT TO AVOID
Nastiness and abusive language.
There is nothing to gain—and a lot to lose—by allowing your potty mouth to get the best of you. Abusive language will only annoy your opponent, discourage productive dialogue, and make settlement negotiations more difficult—or even impossible.
Furthermore, if your dispute leads to a lawsuit, imagine your embarrassment when your letter calling your opponent an “idiot,” “ignoramus,” or “poo poo head” is seen by the judge presiding over your case?
Be completely accurate and truthful
EVERYTHING you put in writing has the potential to be used against you. If you write something that is inaccurate or untrue, it could be used to cross-examine you at trial. That could be embarrassing, damaging to your credibility, and disastrous to your case.
If you are not sure about something, leave it out or put in something to qualify your statement, such as “I am informed and believe that…,” or “it is my understanding that…”
Do NOT commit extortion!
Extortion is a crime. Its elements differ in every state, so you want to make sure you do your research and comply with all applicable state/federal laws. The general pattern of extortion laws is that a person is guilty of extortion if he or she uses certain threats to induce someone to pay something, do something, or refrain from doing something. We cannot and will not interpret the extortion laws in your jurisdiction, but here are some general, non-state-specific pointers for things to absolutely avoid in your demand letter:
Unless your jurisdiction’s laws say otherwise, it is generally not considered extortion to merely threaten to file a lawsuit if your demands are not met—if in fact you intend to file a lawsuit.
FINALIZING AND SENDING YOUR DEMAND LETTER
Have someone proofread and edit your demand letter.
When you think you are done writing the demand letter, ask a friend or family member to review and edit it. Pick someone with great grammar and spelling abilities. If you can find someone with a legal background, that would be a huge plus.
This step is extremely important. We all have a tendency when writing to assume that the reader understands our writing as well as we do. In reality, no matter how many times you edit your own writing, you will almost always miss things that an independent set of eyes could uncover.
If you give your demand letter to someone to review and they return it to you with a pat on the back and no recommendations for edits or changes, that means they did not do their job. Find someone else!
Make a copy and send by certified mail.
Once you have reviewed and finalized your demand letter, keep a copy and send the original by certified mail or some other form of “trackable” delivery.
If you are using the United States Postal Service (i.e., mail), consider using certified mail with return-receipt requested. You definitely want proof that the letter was delivered—especially if your dispute ends up in court. If you have never sent a letter by certified mail with return-receipt requested, ask someone at your local post office to help you. It is easy!
In addition to sending the letter by mail or carrier, consider scanning it and sending a digital copy by e-mail. That will make it even harder for your opponent to deny having receiving it.
To download How to Write a Great Demand Letter, The Legal Seagull’s free guide and demand letter sample, click here.
Are you a new attorney or pro se / pro per party looking to learn how to act in court? Check out Justice Navigator!
|Dec 29, 2016|
When in Rome: How to Act in Court
“When in Rome, do as the Romans do.” Yes, it's an annoying and overused cliché, but an important piece of advice for how to act in court or any other new environment. Going to court is no different than any other new place. There are certain rules and formalities you must abide by—and some important things to avoid.
This podcast will cover the A to Z of how to act in court. It's impossible to anticipate every conceivable scenario you may encounter, but we'll give you detailed guidelines for how to act in court so that you can appear professional, prepared, and confident. This is especially important if you are representing yourself without an attorney (pro se or pro per).
“Dress for success” is another cliché (sorry!), but it is absolutely necessary whenever you set foot in a courtroom. Dress appropriately for all depositions and meetings with the parties and opposing attorneys, whether or not it takes place in a courtroom. Although this may seem obvious, I have seen more than one pro se / pro per party show up in Bermuda shorts and flip-flops!
Judges tend to be very formal and expect parties to be dressed conservatively. What you wear is a reflection of your attitude towards the lawsuit and your respect (or lack thereof) for the court. If you dress poorly, wear tattered or stained clothes, reveal too much skin, or make poor wardrobe choices, you may be judged harshly, even if you are representing yourself pro se / pro per. Although it may seem superficial, jurors are known to penalize parties who dress in an unconventional or non-professional manner.
Clothing options for men
It is always best to wear a suit and tie to court. If you do not own a suit, look for affordable ones in your area or online. Thrift stores are also a good source for used suits—or you can borrow one from a friend or family member.
If you absolutely cannot get a suit, at the very least you should wear slacks and a dress shirt (properly ironed) with a tie and sports coat. As for shoes, go with brown or black dress shoes.
Never wear: Sneakers, sandals, flip-flops or any other open-toed shoes; a cap or hat; shorts; sunglasses (unless you have a medical condition); jeans; t-shirts; torn clothing; or excessively baggy pants.
Clothing options for women
Disclaimer: I am in no way an expert in women’s clothing! However, based on my years of experience in various courthouses, it seems the best options are a pants suit, skirt suit, nice dress, or slacks with a conservative top.
Although society has become much more progressive in its approach to gender equality, courts have not moved nearly as fast. Judges and jurors still have conservative views when it comes to proper attire for women (yes—there is a double standard!). Avoid dresses and skirts that are too short—nothing higher than the knees—and blouses that reveal too much skin.
Never wear: Sneakers; flip flops; halter tops; tank tops; sleeveless blouses; t-shirts; mini skirts; or shorts.
For both men and women
Always budget enough time to make it to court. Take into account traffic, parking, and courtroom security. Depending on the courthouse, it may take you a while to get through security.
Being late reflects poorly on you and could result in you being penalized and reprimanded by the judge. As the great Vince Lombardi said, “if you ain’t 15 minutes early, you’re late.”
Address the judge properly.
When addressing the judge, always address him or her as “Your Honor.” It is generally appropriate to say “Judge,” but try to stick to “Your Honor.” Never address the judge as “Sir,” “Mister,” “Madam,” “Ma’am,” “Jonathan,” or “Wassup, Dawg?”
Stand when you speak to the judge.
Even if there are chairs at the counsel’s table, always stand when speaking to the judge unless you are invited to sit down or you have a medical condition that makes standing difficult or impossible.
Direct all comments and arguments to the judge.
Always speak directly to the judge; do not address your opponent or the opposing attorney. When responding to your opponent’s arguments, speak directly to the judge.
Even though it might seem strange, you are always addressing (and facing) the judge when you talk. This applies whether you have an attorney or are representing yourself pro se / pro per.
Be polite and show respect to the court and parties.
Treat the judge and your opponents with courtesy and respect, even if you disagree with what they are saying. Here are a few words and terms you can use to keep your language respectful:
NEVER interrupt the judge (or anyone else).
This is a big no-no! Judges hate being interrupted (especially by pro se / pro per parties). Even if you disagree with the judge, believe he or she misunderstands an aspect of the case, or is misstating the law or the facts, do not interrupt. Wait until the judge has finished, and then politely respond, unless of course the judge indicates that you should stop talking.
The same goes for the opposing party, counsel, and witnesses. You may hate what they are saying—but do not interrupt. Wait until they are done and the judge asks you to respond. If the judge does not offer you a chance to respond, you can politely ask the judge to allow you to speak.
If you are ever admonished or criticized by the judge, never be disrespectful or raise your voice.
Never approach the bench without permission.
The judge may ask you to approach the bench to speak privately. Unless you are invited, do not approach the bench without permission. The last thing you want is to be tackled by the bailiff!
Avoid negative body language.
You may not like what the judge, parties, or witnesses are saying; however, you must make sure you do not exhibit any negative body language. Do not smirk, roll your eyes, groan, or make any other gestures. Doing so could subject you to discipline by the court, and the judge and jury might interpret this as arrogance or rudeness.
Be persistent but know when to stop.
During court proceedings, you might disagree with the judge’s rulings. As long as you do so respectfully and politely, you may ask the judge to reach a different ruling. However, know when enough is enough!
Do not chew anything.
Do not chew food, gum, tobacco, or anything else while in court. Judges do not like it and neither do jurors.
Never lie or mislead the court.
It is unlawful, improper, and just plain wrong to lie or distort the truth in court. If you do so under oath, you could be prosecuted for perjury, held in contempt, or face fines, imprisonment, or all of the above.
Be very nice to the clerk.
The court clerk has a surprising degree of power—which could help make your life a bit easier or much harder. For example, clerks can sometimes reject court filings for very minor, technical violations of court rules. Other times, they may be more willing to “bend” the rules.
Being nice will not necessarily get the clerk to help you—but your chances will probably be better than if you are rude!
Put away your cellphone.
Put your phone on silent mode or shut it off before entering the courtroom. That means no talking on your phone. No text messaging. No Facebook, Instagram, or Twitter. And don’t you DARE try taking a selfie with the judge!
I once sat next to a pro se / pro per party who was so busy playing a game on his phone that the judge had to call his case four times before he finally realized what was happening. Needless to say, the judge was not impressed…
It is normal to have some anxiety regarding your first day in court. There is nothing unusual about feeling uncertain, nervous, or even mildly panicked before entering a new environment. Just remember the tips in this article and you will be off to a great start! You can learn more by subscribing to The Legal Seagull’s podcast on iTunes, Stitcher, or Soundcloud.
Are you a new attorney or pro se / pro per party looking to learn how to act in court? Check out Justice Navigator!
|Dec 26, 2016|
S**t Out of Luck: Don’t Blow the Statute of Limitations!
Statutes of limitation are laws limiting the time to file a lawsuit for a particular event or set of facts.* Statutes of limitation cut off a party’s right to sue another party after a certain time period. Legal claims, like the salami in your fridge, have expiration dates.
Throughout my career, I have had the following situation happen to me several times. I meet a potential client, listen to her story, and start to believe she has a potentially good case supported by solid evidence. Intrigued, I ask her, “when did this all happen?” Her response is something like: “about 7 years ago.” My initial enthusiasm then turns to disappointment as I realize that the statute of limitations expired years ago, completely extinguishing her right to sue.
One of the biggest mistakes parties without an attorney (known as pro se or pro per parties) and new attorneys make is failing to realize that the statute of limitations has expired on their claims. You could have the best facts in the world—but if you blew the statute of limitations—your case is probably toast.
What are statutes of limitation?
Statutes of limitation are laws limiting the time to file a lawsuit for a particular event or set of facts. Statutes of limitation cut off a party’s right to sue another party after a certain time period. Legal claims, like the salami in your fridge, have expiration dates.
For example, in the fictional State of Atlantis, the statute of limitations for personal injury claims is two years from the date of incident. On January 5, 2017, Dale Defendant smashes his speeding car into Patrick Plaintiff, breaking Patrick’s legs. Patrick has until January 5, 2019* to file a lawsuit. If Patrick files the lawsuit after January 5, 2019, he has blown the statute of limitations and most likely cannot sue.
Even though judges are sometimes slightly more lenient with pro se / pro per parties, they will not (and cannot) allow you to proceed with your lawsuit if you blow the statute of limitations (even if you are pro se / pro per).
Generally speaking, statutes of limitation control the time a party has to file a lawsuit—not the time to litigate it. This means that Patrick must file his lawsuit by January 5, 2019, but the lawsuit can proceed in the court system through trial (if necessary) after that date. In other words, if the case goes to trial in September 2020, there is probably no issue with the statute of limitations, because the lawsuit was timely filed.
How do you figure out the statute(s) of limitations for your claim(s)?
Each state sets its own statutes of limitation. Depending on the type of claim, different statutes of limitation may apply, and they may be calculated in various ways. Some statutes of limitation may be as short as 1 year; others may be 2, 3, 4, 5 years, or even longer.
Keep in mind there may be more than one statute of limitations for your claims. For example, you buy a house that has multiple construction defects that the seller failed to disclose during escrow. You decide to sue pro se / pro per for (1) breach of contract, and (2) fraud. Let’s say that in your state, the statute of limitations for breach of contract is 4 years, but the one for fraud is only 3 years. In this scenario, the safer bet would be to file the lawsuit within 3 years so you do not blow the statute of limitations for the fraud claim.
To ensure you do not miss the statute of limitations, research the law in your state as soon as you begin considering a lawsuit. If you can afford to hire an attorney—or at least get free legal resources from a self-help center—you will probably be better off. Be sure to write the statute of limitations date in your calendar and set a reminder so you do not miss it. Even a one-day delay could kill your case!
Can the statute of limitations be extended?
Under certain circumstances, a statute of limitations may be “tolled,” which is basically a fancy legalistic way of saying “extended.” Read your state’s laws and court rules to determine under what circumstances (if any) the statute of limitations may be tolled.
States have different grounds for tolling the statute of limitations. Here are some common grounds—but each state is different:
Better to be safe than sorry.
Even if there are grounds to toll the statute of limitations, do your best to file within the statute’s time period rather than assuming it will be tolled. For example, let’s say you are 2 years into a 3-year statute of limitations, but you believe the statute should be tolled because your opponent was deployed overseas for six months. The safer choice would be to file before you hit the 3-year mark, rather than waiting 3.5 years and hoping that the judge rules in your favor that the statute of limitations has been tolled.
What if you file a lawsuit after the statute of limitations?
If you file a lawsuit after the statute of limitations expires, your opponent may file a motion to dismiss (in some states known as a demurrer). You will have the opportunity to oppose the motion and explain why you believe the statute of limitations has not expired (or has been tolled).
If your opponent wins the motion/demurrer, your case will be dismissed and the judge may order you to pay your opponent’s litigation costs. If the judge believes your lawsuit was frivolous, he or she may impose money sanctions against you, even if you are representing yourself pro se / pro per.
As you can see, understanding the statute(s) of limitation for your case is extremely important. Failing to timely file your lawsuit could be disastrous to your case and a waste of your precious time and money.
The acronym for statute of limitations—S.O.L.—is the same as s**t out of luck. Coincidence?
Are you a new attorney or pro se / pro per party looking for help? Check out Justice Navigator!
* This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer
|Dec 21, 2016|
Justice Ain't Cheap: Does It Make Sense for You to Sue?
Before you even consider filing a lawsuit, you must determine whether it makes financial sense for you to proceed. In this episode, we discuss some important factors to consider when evaluating the economic wisdom of proceeding with a lawsuit.
You are ready to file a lawsuit.
You have identified who (or what) to sue.
If you are representing yourself without an attorney (pro se or pro per) you have researched your state’s law and determined what causes of action to include in your complaint.
You are ready to pull the trigger—prepare a complaint, file it in court, serve your opponent with it, and start your pursuit of justice.
There is just one step left . . . and it is an extremely important one! You have to determine whether it makes financial sense for you to proceed with a lawsuit. You must balance your expected recovery (what you hope to get out of the lawsuit) against your litigation costs AND your opponent’s ability to pay off a potential judgment.
You could have the best lawsuit ever—but if it is going to burn a hole in your wallet—it is probably not worth your time and money!
Common litigation costs you may encounter
Depending on your state, county, city, etc., court fees and litigation costs may differ. Here are some common expenses you may need to pay:
Check to see if you qualify for a fee waiver that would allow you to proceed without paying any (or some) court fees. Every jurisdiction is different, but this usually involves filing an application or motion to waive fees, which a judge then reviews and makes a ruling. You will likely need to produce evidence showing that you cannot afford to pay court fees (e.g., affidavit, declaration, bills, bank statements, etc.).
As you can see, lawsuits can be very expensive, even if you save money on attorney’s fees by representing yourself pro se / pro per. Do not let this list overwhelm you—I prefer to be overinclusive so you know upfront what costs you might incur. Sometimes surprises suck!
What if you can recover litigation costs?
At this point, you might be thinking to yourself: “I don’t care about litigation costs because in my state, the losing party has to pay the winner’s litigation costs, so I’ll just win and get those expenses back!”
If your state allows you to recover litigation costs, that is great! But remember: you still have to win to recover! That means you will likely have to go to trial, prove your case, and obtain a judgment in your favor.
If you lose, you are out of pocket for all your litigation costs AND you have to pay your opponent’s costs! Or, if you settle (as do 90-95% of cases), most settlements involve each party “eating” (absorbing) its own costs.
Even if you win and get your litigation costs back in the end, you still have to come up with the money to finance your lawsuit until the end. If you run out of money midway through your lawsuit, you may end up having to dismiss it.
Watch your wallet!
Determine whether your opponent can afford to pay you
Here is a rhetorical question: How happy would you be if you won a judgment—only to find out that your opponent is broke, unemployed, in serious debt, and cannot pay you a penny? Even worse, if the defendant files for bankruptcy, your right to collect the judgment will probably be terminated.
To avoid this disaster scenario, you should find out early on whether your opponent has the financial wherewithal to pay you if you win. Do some basic online research (e.g., Google, Bing, etc.) and social media (Facebook, Instagram, etc.). Is he employed? Does he drive a nice car? Does he appear to have disposable income (vacations, restaurants, property, possessions)?
You can also try searching public records in your state/county/city to determine whether he owns property, such as homes, cars, boats, etc. The more you know about your opponent’s assets—or lack thereof—the better position you will be in to determine whether you are likely to get paid.
Researching a business’s financial situation is a bit trickier than a person, but there are still things you can do. Drive past the business. If it is a retail establishment, restaurant, or store, are there people going in and out? Does it appear to be relatively successful? Does it own any equipment, vehicles, or merchandise? Does it have a legitimate website and social media presence? Read any reviews or articles you find relating to that business.
You can also search public records to determine whether the business or individual has outstanding judgments or liens (e.g., taxes, child support, alimony, criminal penalties, etc.).
There are also online services you could use to check whether your opponent has any prior or pending bankruptcies, lawsuits, judgments, liens by creditors, court orders for garnishment of wages, child support, or alimony. These services may even be able to tell you whether your opponent has property, personal possessions, and a job.
If you discover unpaid judgments and liens, that is a red flag. It means that other parties have had a hard time collecting from your opponent. You may very well run into the same problem…
One last word on this topic: Just because a person or business is broke does not necessarily mean pursuing a judgment is pointless. The future is uncertain. A person can eventually inherit money, start a successful business, or sell off property. Depending on the state, judgments may be valid for 10-20 years, and can often be renewed. The big question is: How long are you willing to wait to recover your money… if ever?
Before filing a lawsuit, be sure it makes financial sense. If you rack up expenses beyond what you recover, you are in a worse position than you would be without the lawsuit. Likewise, if you sue a person or business that is broke or contemplating bankruptcy, you will probably have a hard time enforcing your judgment.
Like many things in life, justice ain’t cheap.
* This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer
|Dec 18, 2016|
Exculpatory Clauses: Signing Away Our Right to Sue
You may not recognize the term exculpatory clauses; however, it may surprise you to learn that you have signed dozens upon dozens (if not hundreds or thousands) of them. In fact, you may have even signed one today!
You have “agreed” to an exculpatory clause if you: (1) had a valet park your car; (2) received medical treatment of almost any kind; (3) signed a residential lease; (4) gone skydiving; (5) checked your coat in at a restaurant; (6) swam in a hotel pool; (7) used software or applications and clicked “AGREE” to the terms and conditions; (8) attended a concert; (9) gone on a cruise; and much, much more.
Exculpatory clauses are agreements that relinquish a person’s right to hold another party liable for certain (or all) wrongful conduct. These clauses were once only used in connection with inherently dangerous activities (e.g. skydiving, white-water rafting, etc.) but can now be found in a seemingly endless array of activities, consumer products, and services.
Exculpatory clauses are everywhere… but are they enforceable? (SPOILER ALERT: YES… and NO)
In this episode, I interview Professor Scott J. Burnham, the Curley Professor of Commercial Law at Gonzaga University*, and author of Contract Law for Dummies, The Contract Drafting Guidebook, and Drafting Contracts. Professor Burnham guides us through the intricacies of exculpatory clauses and helps us understand the competing societal interests of freedom to contract vs. the right to hold wrongdoers accountable for their negligent, reckless, and intentional acts and omissions.
For further reading, please see Professor Burnham’s excellent law review article on exculpatory clauses: Are You Free to Contract Away Your Right to Bring a Negligence Claim?, 89 Chicago-Kent Law Review 379 (2014). It is available at http://studentorgs.kentlaw.
Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook, follow us on Twitter and Instagram (https://www.instagram.com/thelegalseagull).
* This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer
** The views expressed in this podcast episode are those of Professor Burnham and not those of Gonzaga University or Gonzaga University School of Law.
|Dec 12, 2015|
Basic Contracts 102: Defenses
In this second part of our two-episode series on basic U.S. contract law, we discuss the various defenses to contract formation and breach, including: lack of acceptance, lack of consideration, lack of capacity, illegality, violation of public policy, unconscionability, ambiguity, misrepresentation, duress, Statute of Frauds, rescission, impossibility, prevention of performance, failure of condition precedent, and accord and satisfaction.
|Nov 26, 2015|
Basic Contracts 101: Contract Formation: Offer, Acceptance, and Consideration
A contract is a voluntary, private, legally enforceable agreement between two or more parties. To be valid, a contract must, atminimum, consist of an offer, acceptance, and consideration. In this episode, we discuss the formation of contracts, and delve into the following questions
|Nov 17, 2015|
Living Wills and Health Care Proxies
Monumental advances in medical technology have made it possible for human life to be extended dramatically, often with unintended consequences. The ability to suspend death artificially (e.g. hydration and feeding, mechanical ventilation, surgery, etc.) creates a painful dilemma. How long do you want to live? What means do you want your doctors to employ to keep you alive? What are the parameters doctors and hospital staff should follow in determining when to refuse (or modify) care?
Without a living will, all of these decisions could end up being made by a doctor, a nurse, or even a judge.
A living will is a legal document that allows a person who is incapacitated (e.g. vegetative state, coma, permanent unconsciousness, brain injury, etc.) to specify the type and scope of care he or she wishes to receive. In this episode, we explore the importance of living wills in ensuring that our final wishes are obeyed.
|Nov 10, 2015|
Should You Go to Law School?
Are you considering applying to law school? Have you been accepted to law school and are now considering whether to enroll?
Deciding whether to attend law school is one of the most important decisions you will make. Regardless of your ultimate decision, there are many factors to consider. In this episode, we discuss (in great detail), and with many attempts at humor (some successful), whether law school is right for you.
|May 15, 2015|
Indiana’s Religious Freedom Restoration Act (RFRA)
On March 26, 2015, the Indiana legislature passed its version of the Religious Freedom Restoration Act (RFRA). What ensued was a national controversy, with many large conglomerates threatening to withdraw business and economic support from Indiana. In this episode, we interpret Indiana’s RFRA and its subsequent “fix” – and try to make sense of its implications.
|Apr 16, 2015|
Unethical Attorney Billing: the Bad, the Bad, and the Ugly
Let’s face it- some attorneys give the profession a bad name by engaging in unethical billing practices (or, in attorney parlance, “padding”). In this episode, I discuss the following, in detail:
– Three common types of billing: (1) hourly; (2) contingency; and (3) fixed rate (flat fee).
– Ethical issues that arise in each of these areas, including examples.
– Discussion of several important rules governing attorney billing.
|Mar 26, 2015|
Nine Things I Learned Watching My Dad Fight Cancer
In this episode, I discuss nine things I learned watching my dad fight cancer:
1. The importance of estate/medical planning: advanced health care directives, wills, health care proxies, and life insurance.
2. Life is unpredictable and (sometimes) short.
3. Live every day as if it is your last.
4. Tell your loved ones that you love them- every day.
5. The importance of humor.
6. Love has its own language.
7. There is no alternative to hope.
8. Doctors and nurses don’t know as much as you think they do.
9. The distinction between quality of life vs. quantity of life.
|Mar 18, 2015|
Can’t Always Indict a Ham Sandwich: Michael Brown, Eric Garner, and the Grand Jury System
In the span of less than two weeks, grand juries in Missouri and New York voted not to indict police officers for the deaths of two unarmed black men in unrelated encounters. What followed was a chorus of indignation by many Americans, including prominent public figures. Accusations abound of racism, injustice, and inequality. In today’s episode, I interview Michael F. Bachner, a renowned criminal defense attorney who has tried many high-profile cases, including organized crime, labor corruption, narcotics, white collar crime, weapons charges, and homicide. Mr. Bachner answers these questions, and more:
– Was there something fishy about the grand jury proceedings in the Michael Brown case?
– Did racism play a factor in the grand juries’ decisions?
– Should the prosecutor in the Brown case have recused himself in light of his close family connections to law enforcement?
– What was the evidence presented at the Michael Brown grand jury hearing?
– Was Officer Wilson’s testimony plausible?
– If Officer Wilson had been indicted, was a conviction at trial likely?
– What were the factual differences between the Michael Brown and Eric Garner cases?
– Did the officers in the Eric Garner case use excessive force?
|Dec 05, 2014|
What is a Fourth Amendment "Search?"
The Fourth Amendment of the United States Constitution prohibits “unreasonable searches and seizures.” For a police intrusion to be unconstitutional, it must be both: (a) a “search” AND (2) “unreasonable.” In this episode, we focus on the Supreme Court’s interpretations of a SINGLE word in the Fourth Amendment: “searches.”
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis added).”
You might be wondering, “What’s the big deal? A “search” is a search!” As with many constitutional issues- the more we learn- the more questions arise. In these times of rapid technological advances, when law enforcement agencies utilize everything from miniature cameras, drones, monitoring devices, GPSes, and drug-sniffing dogs, the meaning of “searches” has become more elusive than ever before.
|Nov 27, 2014|
Liebeck v. McDonalds: The Hot Coffee Case
Did you ever hear about the woman who spilled McDonald’s coffee on herself and was awarded five kachillion dollars by a jury? Liebeck v. McDonalds, the “hot coffee case” went to trial in 1994, and remains to this day one of the most notorious civil lawsuits in American history.
The verdict was quickly (and sensationally) reported by late night talk show hosts, newspapers and magazines, and practically every national and local television channel. It even made its way into foreign newspapers. As the years passed, the story evolved, several important facts were omitted and others added, and the truth was lost in the annals of history.
The “hot coffee case” has become a cause celebre for politicians and business tycoons, who, in support of their calls for “tort reform” legislation, conveniently cast it as the archetypal “frivolous lawsuit.” Everyone knows of the case– but few people are aware of the actual facts.
In this episode, we discuss the myths and truths of Liebeck v. McDonalds.
|Nov 17, 2014|
Home Sweet Home: Warrantless Searches of Residences
The home is universally revered as a place of sanctuary, privacy, and independence. It is not surprising that the United States Constitution affords special protections to the home. The Fourth Amendment states:
Notably, the Fourth Amendment only prohibits unreasonablesearches and seizures; moreover, it does not state that warrants are required– only that when issued- probable cause is a pre-condition to issuance. In the context of police entry into one’s dwelling (“houses” includes apartments, condos, hotel rooms, and even mobile homes), constitutional jurisprudence has interpreted “unreasonable” as follows: a warrant is required prior to entering and searching a residence . . . subject to a few very important exceptions. This episode will detail the numerous exceptions to the warrant requirement.
This episode will discuss the following exceptions, in detail:
Exigent circumstances are those in which the police have probable cause, but obtaining a warrant is either impractical or there is not enough time. Exigencies include apprehension of a fleeing suspect, imminent threat of destruction of evidence, and likelihood of injury or loss of human life.
– Hot pursuit: the police may enter a residence to capture a fleeing suspect. Unlike baseball, you’re not “safe” once you reach home.
– Destruction of evidence: the police may enter a home without a warrant to prevent the imminent destruction of evidence (e.g. drugs, contraband, etc.).
– Mendez v. Colorado (Colorado Supreme Court, 1999): Police arrive at a motel and smell marijuana emanating from the defendant’s room. They enter the room and find him flushing something down the toilet. They search the room and seize marijuana, cocaine, and drug paraphernalia. The Colorado Supreme Court affirms his conviction, holding that exigent circumstances existed here, where there was an imminent threat of destruction of evidence (e.g. smoking it or flushing it down the toilet).
– Mincey v. Arizona (1978) 437 U.S. 385: Arizona law provided for a “murder scene exception,” which allowed police to conduct warrantless searches of a murder scene on grounds that these inevitably involve exigent circumstances. In this case, the police entered the defendant’s apartment- a shoot-out ensued- and an undercover officer was killed. The police then recovered all injured persons and arranged for medical services. They waited for homicide detectives, who arrived shortly after and conducted a search of the apartment. The U.S. Supreme Court held that the “murder scene exception,” which held that all murder scenes inherently involve exigent circumstances, was unconstitutional. In this case, there was no threat of destruction of evidence or danger to life or limb; therefore, it was not impractical to obtain a warrant prior to searching.
– Flippo v. West Virginia (1999) 528 U.S. 11: Defendant was vacationing with his wife at a state park cabin. He called 911 to report they had been attacked while camping. After interviewing the defendant, the police entered the cabin and found his wife dead with a gunshot wound to the head. They then searched the cabin, discovered incriminating evidence, and charged him with murder. In a unanimous decision, the Supreme Court held, pursuant to Mincey v. Arizona, that a murder scene, in and of itself, does not create a per se exigent circumstance.
– Welsh v. Wisconsin (1984) 466 U.S. 740: The defendant was involved in a vehicle collision, then left the scene prior to the police’s arrival. Witnesses told the police that the driver appeared sick or drunk. Police went to the defendant’s home and found him drunk. The police contended that the search was valid because of a concern of destruction of evidence; namely, the defendant’s blood-alcohol content (BAC) level. The Supreme Court held that even though there was concern for destruction of evidence, when only a minor offense is involved, the presumption is stronger that a warrantless search of the home is unreasonable. The Fourth Amendment’s ban on unreasonable searches involves balancing the right of privacy against the need for police to act in exigent circumstances. In evaluating this balance, the gravity of the alleged crime is a factor to consider.
– Community caretaking exception: the police may conduct warrantless searches when acting in their capacity as community caretakers.
– Cady v. Dombrowski (1978) 413 U.S. 433: The defendant, a Chicago police officer, is involved in a car accident and taken to hospital, where he remains in coma. The police, concerned that his service revolver was not located on him, went to search his vehicle. They found evidence linking him to a homicide, and he was later indicted for murder. The Supreme Court held that even though these are not truly exigent circumstances, the police may act to protect the community under certain circumstances.
– Consent: the police may conduct a warrantless search where they have consent from the defendant or a third-party with apparent authority.
– U.S. v. Matlock (1974) 415 U.S. 164: The defendant was arrested. A woman claiming to be his wife gave the police consent to search the home. The police found drugs and charged the defendant with narcotics violations, of which he was later convicted. The Supreme Court affirmed the conviction, holding that consent may be granted by a co-tenant with sufficient connection to the property or to the defendant.
– Illinois v. Rodriguez (1990) 497 U.S. 177: The defendant was arrested and charged with narcotics violations. The police were given consent to search by a woman claiming that the home was “ours.” They searched the home and found additional evidence, which was later used to convict the defendant. The U.S. Supreme Court holds that the police are entitled to rely in good faith on a consenting person’s claim that he/she has authority to consent.
– Georgia v. Randolph (2006) 547 U.S. 103: The defendant was arrested outside of his home. His ex-wife, who was present at the scene, gave the police consent to search the home for drugs. The defendant, who was still present, vocally refused to provide consent. The police entered the home and seized narcotics. The Supreme Court reversed the conviction, holding that where a co-tenant refuses consent, it is unconstitutional for the police to conduct a warrantless search.
|Nov 08, 2014|
“Tort Reform” or “Tort Deform?" (Part II): Mandatory Arbitration Clauses
Arbitration is an alternative dispute resolution method that allows parties to forego the time and expense of a jury trial and elect instead to have their dispute heard and adjudicated by a supposedly neutral third person. When parties of equal or similar bargaining power elect arbitration, it can be a mutually-beneficial and efficient means of resolving a dispute.
Mandatory arbitration clauses, which require the parties to submit to arbitration, are contained in many consumer goods/services “contracts.” Unless you have been living in the Unabomber’s abandoned cabin for the past 15 years, you’ve signed numerous documents “consenting” to waive court relief in favor of arbitration. If you’ve done business with any of these companies, chances are you will need to arbitrate any potential claims that arise: Amazon, Netflix, Hulu, AT&T, Time Warner Cable, Verizon, T-Mobile, Sprint, Comcast, Discover, Wells Fargo, PNC Bank, Chase, American Express, TD Bank, Citibank, Sony, Dell, Xbox Live, Toshiba, KB Home, Pep Boys, Gold’s Gym, Ticketmaster, Crocs, Barnes & Noble, Match.com, Ebay, Microsoft, Paypal, Stubhub, Dropbox, Snapchat, Charles Schwab, Fidelity, Morgan Stanley, Fidelity, and many more.
Proponents of mandatory arbitration clauses laud them as a consensual means of resolving disputes expediently and speedily. Opponents castigate these clauses as coercive terms buried in an endless pit of “legalese,” and presented to consumers on a “take it-or-leave it” basis. Mandatory arbitration clauses are said to deprive consumers of the right to an impartial jury trial, subject them to a heavily-biased dispute resolution system, shield companies from liability for corporate malfeasance, and produce a host of judicial ills.
In this episode, we discuss the following in detail:
– The advantages of arbitration, as argued by proponents of mandatory arbitration clauses.
– Criticism of mandatory arbitration clauses by consumer organizations:
– Mandatory arbitration clauses are so infrequently detected or understood by the general public that there is no real “consent” to these terms.
– Consumer contracts often include clauses that require arbitration in a distant forum (state or locale), making it more difficult for consumers to exercise their legal rights than would be the case if they could file in state court.
– Company-selected arbitration forums are, both in theory and in practice, inherently biased against consumers.
– Arbitration clauses frequently prohibit forming a class action, making it impractical for many consumers to seek legal relief for the wrongful conduct of corporations.
– Arbitration proceedings are almost impossible to appeal in the absence of clear bias or manifest disregard of a well-established law, thereby restricting consumers’ ability to appeal errant rulings.
|Oct 27, 2014|
“Tort Reform” or “Tort Deform?" (Part I): Caps on Damages
Despite popular belief, “tort reform” has nothing to do with pastries or small cakes (see “tortes” or “tarts”). Torts include a variety of civil lawsuits (e.g. personal injury, wrongful death, medical malpractice, professional negligence, premises liability, defamation and more). “Tort reform” is a term coined by proponents of laws enacted in most states to “reform” our civil liability system. The most controversial of these laws are caps (limits) on the amount of damages a person can recover against a defendant in a medical malpractice lawsuit. In this episode, we discuss the stated purposes of caps on damages and the rebuttals of those who claim these laws amount to nothing more than “tort deform.”
We discuss the following in detail:
– The history of “tort reform” laws in the United States.
– The stated goals of “tort reform” laws:
– Eliminating frivolous lawsuits and “lawsuit lotto.”
– Reducing insurance companies’ payouts- thereby causing professional liability premiums to go down.
– Reducing healthcare costs.
– Preventing “defensive medicine” among physicians and hospitals.
– The rebuttals by opponents of “tort reform” laws:
– The lack of evidence that “tort reform” laws have reduced physicians’ premiums, healthcare costs, or defensive medicine.
– Caps on damages tend to affect those who are most severely injured and in need of financial recovery, such as children, the elderly, and the poor.
– Placing an arbitrary cap on damages invades the role of the jury, which has always had the role of deciding the extent of damages (if any).
– Do caps on damages actually work?
– Are caps on damages unconstitutional?
|Oct 20, 2014|
“Yes Means Yes”: Sexual Consent on College Campuses
In August 2014, the California Senate passed Senate Bill No. 967(the “Yes Means Yes” law). California is the first state to pass a law of this kind, which requires colleges that accept state funds to adopt a new “affirmative consent” standard when evaluating complains of sexual assault. Critics lament that the law is overreaching, blurs the lines of consent by creating significant ambiguity rather than clarity, and violates the longstanding principle of “innocent until proven guilty” by shifting the burden of proof to the accused- who must prove “affirmative consent”- a very difficult evidentiary standard to meet.
Is Senate Bill No. 967 a laudable step towards curbing the epidemic of campus sexual assault? Does it go too far by infringing on the rights of the accused to the presumption of innocence and the right against self-incrimination? Maybe a little bit of both? To answer these questions, I interview civil rights attorney Joseph Cohn, legislative and policy director of the Foundation for Individual Rights in Education (“FIRE”).
|Oct 03, 2014|
Lying Eyes: Eyewitness Misidentification in the Criminal Justice System
In the Marx brothers’ movie Duck Soup, Chico Marx famously says, “Who are you going to believe, me or your own eyes?
Eyewitness misidentification is the most significant contributing factor to wrongful convictions. According to The Innocence Project, 72% of the people exonerated by post-conviction DNA evidence were initially convicted, at least in part, on the basis of an incorrect eyewitness identification. What can explain the phenomenon that witnesses and victims of crime, when recounting such significant (and traumatic) events, are so often mistaken? In this episode, we evaluate the factors that contribute to eyewitness misidentification and discuss a few of the reforms advocated to increase the reliability of eyewitness identification and minimize mistakes.
We discuss the following, in detail:
– In evaluating the evidence against a defendant, an eyewitness identification is accorded substantial weight by jurors. The conventional wisdom is that a person who witnesses a crime, or is a victim, could accurately recall the perpetrator and positively identify him.
– Social scientists have divided the factors contributing to incorrect identifications into two groups: estimator variables and systemvariables.
– Estimator variables refers to factors that are not under the control of the police or justice system.
– Race: studies have demonstrated that people are substantially more likely to make a mistaken identification when the perpetrator is from a different race or ethnic group.
– Distance from perpetrator and lighting: Naturally, the farther the distance from the perpetrator and the worse the lighting, the less chance there is of an accurate identification.
– Emotional stress: it may seem counterintuitive, but high psychological stress actually impairs memory- making it more likely that witnesses will incorrectly identify their perpetrator. This is especially true when there is a weapon present, as the witness tends to focus on the weapon rather than the face of the perpetrator.
– Memory: our memory does not function as a “sponge” that retains everything we see and hear; rather, we retain some or most of what we perceive, but many gaps remain- which we then subconsciously fill with other memories (such as newspaper articles we read, photos we saw, etc.); our expectations or beliefs of what should or was likely to have happened; biases; and general knowledge.
– System variables refers to factors that are under the control of the police or justice system, such as the behavior of the police, communication with witnesses, and procedures for police lineups.
– Suggestibility: police officers present during a suspect lineup may intentionally or unintentionally hint to a certain suspect. The witness wishes to be helpful and to remove a dangerous person from the streets, and is often easily swayed. Here are a few examples of how this plays out:
– “Take another good look at no. 3: does he look like the guy who assaulted you?”
– If the witness appears to be focusing on the “wrong” person: “please take all the time you need and look carefully at each of them before making any decisions.”
– “Great job, that’s the guy!”
– Sometimes the police officer need not say anything. For instance, the witness may notice the officer staring at a specific person for too long and realize that this person is in fact the focus of the investigation.
– Selection of “fillers”:
– Lineups typically consist of the primary suspect and five or six “fillers”- who are put in to “distract” the witness.
– The problem is that studies have shown that witnesses often engage in “relative judgment” (i.e. comparing the people in the lineup to each other and picking the one that looks most like the perpetrator) rather than “absolute judgment” (i.e. comparing each person independently to their recollection of the perpetrator).
– If the suspect looks different, or stands out in some way from the fillers, the witness may be led to identify the outlier as the perpetrator.
– Here a few examples of real cases:
– The defendant is the only black person standing next to five white people.
– The defendant is the only person in the lineup wearing a baseball cap, consistent with the witness’ description of the perpetrator as wearing a cap.
– The defendant is the only person with a beard.
– Simultaneous lineups: As noted above, the problem of “relative judgment” is exacerbated by the common method of putting the suspect in a lineup simultaneously with the fillers, which allows for comparison with others rather than to one’s recollection.
– There are several reforms advocated by organizations committed to reforming the problem of eyewitness misidentification. These include the following:
– “Double blind” lineup– arranging the lineup so that neither the witness nor the police officer administering the lineup know which person is the suspect. This eliminates the problem of suggestions (inadvertent or otherwise) by the police officer.
– Sequential lineup vs. simultaneous lineup– eliminating the simultaneous lineup and having the witness evaluate each person in the lineup separately, without knowing who is next or if there are any additional persons coming up in the lineup.
– Selection of fillers to closely match eyewitness’ description: this will limit the possibility that the suspect will stand out and be picked on the basis of vague resemblance to the perpetrator rather than an absolute identification.
– Instructions: the witness will be instructed that (1) the perpetrator may or may not be in the lineup; (2) the witness should not look to the police officer or anyone else for guidance; and (3) the investigation will proceed regardless of the ability of the witness to make an accurate identification. These instructions are designed to remove some of the witness’ pressure to make an identification when facing doubts.
– Recording identification: in cases where the witness’ identification is wavering, unclear, or influenced by the administrator of the lineup, videotaping the identification allows the defendant to question the reliability of the identification at trial.
– Confidence statement: asking the witness to state how confident he or she is in the identification to decrease the risk of a wrongful identification.
– Educating the jury: Presenting expert testimony regarding the unreliability of eyewitness identification to educate the jury as to the problems inherent in eyewitness identification and encourage them to take caution when evaluating the strength of the identification.
|Sep 26, 2014|
Watch Your Keyboard: Defamation in the Age of Social Media
n this age of social media, it has become easier than ever for ordinary Americans to find ourselves defendants in a defamation lawsuit. What sometimes begins as a mischievous or ill-conceived Tweet, Facebook post, Yelp review, Linkedin message, or Google + announcement could result in a libel lawsuit if the person or business mentioned in the communication believes that it is defamatory and contains false assertions of fact. In an increasingly litigious environment, watching what we type is not only good practice- it’s a necessity to minimize the risk of an expensive and burdensome lawsuit.*
In this episode, I discuss the following in detail:
– Defamation can be divided into libel (for written statements), and slander (for verbal statements).
– The elements of a claim for defamation:
– Publication: the statement must be made to at least one person other than the person allegedly defamed.
– The subject of the statement must either be named or referenced in a way that he, she, or it can be reasonably identified by others. (For example, “the daughter of Billy Ray Cyrus [insert allegation here].”
– Falsity: truth is an absolute defense to the tort of defamation. The plaintiff has the burden of proving that the statement is in fact false.
– Mere opinions do not qualify as defamatory statements. To amount to defamation, a statement must be an assertion of a false specific fact (or facts). Beware: merely qualifying a statement with “In my opinion…” does not necessarily shield one from liability for defamation!
– Injurious: the statement must harm the plaintiff in some way. Examples include being subjected to humiliation, shame, hatred, contempt, disrepute, scorn, or ridicule. In addition, economic damages are available for harm to one’s business, livelihood, or profits.
– Statement must not be protected by a privilege.
– There are certain privileges that protect statements from liability for defamation:
– Statements made by legislators in a legislative deliberation or proceeding.
– Statements made in court proceedings
– Statements between spouses
– In some states, former employers have certain protections for comments made in response to inquiries from prospective employers of a job applicant.
– Defamation of ordinary citizens vs. “public figures”
– “Public figures” refers not only to elected officials and civil servants, but also to people in “positions of such persuasive power and influence that they are deemed public figures for all purposes . . . They invite attention and comment.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972) Public figures may include judges, celebrities who take positions on issues of public concern, activists, journalists, community leaders, and other persons who take positions on matters of public concern.
– When suing for defamation, public figures have to prove that the false statements were made with “actual malice”. “Actual malice includes: (1) making statements that the person knows are false; OR (2) acting recklessly by making statements that he or she has strong reasons to believe are false, or entertains serious doubts about the truth of the statements, yet publishes them anyway. In the landmark 1964 decision in New York Times v. Sullivan (1964) 376 U.S. 254 , the U.S. Supreme Court ruled that the First Amendment protects speech against public figures because society has an interest in having people feel free and open enough to discuss matters of public concern without fear of litigation or prosecution. For those reasons, a public figure must prove that the alleged defamatory statements were made with “actual malice.”
– Defenses to defamation:
– Opinion/hyperbole: In Carl Sagan v. Apple Computer, Inc. (1994) 874 F. Supp. 1072, the U.S. District Court for the Central District of California granted Apple’s motion to dismiss Sagan’s libel lawsuit for Apple’s use of the internal code name “Butt-Head Astronomer,” an apparent reference to Sagan. The court held that use of the term “Butt-Head Astronomer” was merely hyperbole, and could not be reasonably interpreted as a specific assertion of fact regarding Sagan (i.e. no one would actually think he was a “Butt-Head Astronomer.”
– Reputation of statement target is so tarnished that even if statement was defamatory, it still could not harm their reputation further.
– How social media contributes to the prevalence of defamation lawsuits:
– The ease of posting statements on Twitter, Facebook, Yelp, etc. makes it easier than ever for anyone to post voluminous statements to a wide public audience. Prior to the age of the Internet, media was controlled by “gate-keepers” such as publishers and newspaper editors, which in turn made it very difficult for almost everyone to disseminate their statements. Social media has thus irretrievably broken the barriers to publication, which in many ways is a great development.
– Statements made through social media have a very lengthy lifespan– possibly eternal- which increases the audience of every statement and the likelihood that a disparaging statement could damage its target’s livelihood. In the age of newspapers, statements were available to the public for only a few short days before being relegated to archives.
– What can we do to prevent defamation?
– Think long and hard before posting anything online. Ask ourselves:
– Is this a true statement? How do we know that? Is there a chance that it is not?
– Can this statement harm someone’s reputation or livelihood?
– Is this statement, whether true or false, worth getting sued over?
– Does this statement involve an important issue of public concern that needs to be addressed to prevent injury or damage to others?
– Talk to our children about the dangers of social media defamation, the permanence of online communications, and the need to be careful before making any statements online.
|Sep 20, 2014|
Exonerated After 20 Years on Death Row: Interview with Nick Yarris, Formerly Inmate No. AM-6841
|Sep 14, 2014|
5 Things You Can Do to Protect Your Assets Before You Get Sued
No one plans to get sued. But sometimes the unexpected happens. You get in a car accident. Your decaying oak tree collapses onto your neighbor’s roof. A former business associate accuses you of breaching a contract. Your poodle, Mister Schnookums, bites some little brat in a park. You get the point.
If your opponent obtains a judgment against you, he can probably pursue your personal assets to satisfy the judgment. This may include bank accounts, wages, real estate, vehicles, boats, personal items, and more.
In this article, I will discuss five steps you can take to protect your assets before you get sued. Once you get sued (or, depending on the state, threatened with a lawsuit), things get a lot trickier. In many (if not all) states, courts have power to declare certain transfers of money and property to be fraudulent or otherwise invalid. These laws are designed to prevent defendants from evading their responsibility to pay judgments. 43 states have passed laws similar or identical to the Uniform Fraudulent Transfer Act (UFTA), which invalidates certain transactions that occur during an active or imminent lawsuit. For this reason, you should start your asset protection plan well before you get sued—as in right now.
Be mindful that laws pertaining to personal liability and judgment collection differ among states. Make sure you read this disclaimer (hyperlink) before continuing this article. Do yourself a favor and consult with an attorney licensed in your state to make sure you do everything you can to protect yourself.
For most people, the two most important insurance policies are: automobile liability insurance and homeowner’s insurance (renter’s insurance if you do not own a home). For each policy, make sure you thoroughly understand what your policy limits are, what your policy covers, and which exclusions apply.
Automobile liability insurance
Automobile liability insurance covers you in the event you negligently cause someone injuries, death, or other damages (e.g., property, loss of wages, etc.). It is mandatory in almost every state.
Every insurance policy has policy limits. These are limits on the amount the insurance company will pay for a specific loss. For example, let’s say Daphne Driver has the following policy limits: $50,000 for bodily injury and $10,000 for property damage.
While texting and driving, Daphne smashes into Mario Motorcycler, shattering half the bones in his body. Mario’s medical bills are $70,000 and his $13,000 motorcycle is destroyed. The most the insurance company will pay is $50,000 for Mario’s bodily injuries (out of $70,000) and $10,000 for his property damage (out of $13,000). This means that Daphne may be held liable to Mario for the $23,000 difference ($20,000 for bodily injury; $3,000 for property damage). Daphne would have been better off getting a policy with higher limits; however, she would have paid more in premiums (i.e., payments). Insurance is always a tradeoff. Higher premiums mean less risk—and vice versa. It is up to you to evaluate your needs and appetite for risk and to select the appropriate insurance policy. It is not always an easy decision!
In addition to verifying that you have adequate policy limits, make sure you read and understand the exclusions in your policy, if any. Exclusions are provisions in the policy that eliminate insurance coverage for certain losses. What this means is that the insurance company will not pay under these circumstances. Every policy has its own exclusions, but I will go over two important exclusions: (1) excluded drivers, and (2) business use.
Let’s start with excluded drivers. I am often shocked to see how many people do not realize until after an automobile collision that their own children are excluded drivers under the policy. Read your policy thoroughly and/or contact your insurance agent to find out if anyone is excluded under your policy. If someone is excluded, they must NEVER drive your car, not even for a short drive to pick up tacos. No taco is worth personal liability!
The second exclusion is the business use exclusion. If you use your car for work (e.g., pizza delivery, dog grooming, transporting people), make sure your automobile policy does not exclude business use. If it does and you get in an accident, there is a high probability the insurance company will refuse to pay. You may need to purchase additional coverage to insure you for potential business-related accidents.
Beyond covering the structure and contents of your home, homeowner’s insurance has the added benefit of providing you with liability coverage for a wide array of potential claims. Here are a few examples of claims that might be covered:
As with any other insurance policy, make sure you have sufficient policy limits and that you understand the exclusions to the policy. If you operate a business out of your home (e.g., day care) make sure you are either covered under your homeowner’s policy (this is rare) or have a separate business/commercial insurance policy.
A trust is a legal entity that holds assets for the benefits of beneficiaries. It is managed by a trustee, who has all the legal obligations and control over the trust’s funds and property, and must govern it according to the terms of the trust, and for the benefit of the beneficiaries.
There are several types of trusts that can be used to protect your assets from creditors (e.g., asset protection trust, qualified personal residence trust, life insurance trust, etc.). Generally, to protect your assets from a judgment, the trust must be irrevocable. What this means is that you cannot “cancel” it or have any control over the assets.
Typically, for a trust to shield your assets, a trustee (other than you) must have the discretion to make any and all disbursements. When creating the trust, you would specify the terms and parameters in the trust document, and the trustee then governs the trust according to those terms.
Forming a trust can be complicated. Strongly consider consulting an attorney licensed in your state to evaluate your circumstances and determine the best options for you.
If you own all or part of a business, whether as a sole proprietor or in a general partnership with someone else, you may be exposed to unlimited personal liability for the business’ debts. If you are in a general partnership, you could be liable for the poor business decisions of your partners. You may even be liable for fraud and criminal acts committed by your partners. For these reasons, a general partnership can be very risky—exposing you to a great deal of personal liability.
To protect yourself from personal liability, consider forming a corporation, limited liability company (LLC), or limited partnership (LP) for your business. Doing so will, in most cases, reduce your exposure to your business investment. Before you do anything, research your state’s laws or consider hiring an attorney or accountant specializing in entity formation and taxation.
Need another reason to contribute money to a retirement account? Retirement accounts (401(k), 403(b), IRA, etc.) have certain protections that prevent creditors from reaching them. This is especially true for plans governed by the Employee Retirement Income Security Act (ERISA), which covers an overwhelming majority of employer-administered plans.
Qualified plans governed by ERISA enjoy an unlimited protection from creditors (except the IRS and child support). There are also protections for retirement plans not governed by ERISA, though these are somewhat less extensive. Non-ERISA IRAs, for example, have a protection cap of $1 million (adjusted for inflation) from bankruptcy proceedings.
Homestead exemptions protect the equity in your principal residence (not investment properties) from seizure by creditors. Homestead exemptions differ from state to state. In a small number of states, homeowners enjoy an unlimited homestead exemption. Check the law in your state to determine whether you are one of those lucky few!
Depending on your state’s law and your personal financial situation, it might make sense for you to pay additional principal on your mortgage rather than keeping it in your bank account. For example, if you have put $50,000 into your house (down payment, mortgage payments, etc.) but your state has a $100,000 homestead exemption, it may make sense for you to invest available funds in your home rather than a bank account, which can be reached by creditors.
Lastly, check to see how your house is titled. Some states allow for married couples to take title as tenants by the entirety. Under this ownership structure, each spouse has an indivisible share of the property. This means that both of you must consent to any sale or conveyance. If a creditor obtains a judgment against you, he may not be able to force you to sell the house without your spouse’s permission. However, if both you and your spouse are sued, this protection would not be particularly helpful.
Protecting your assets will require some time investment and planning—but it is achievable. You may need to spend some money to consult with an attorney, accountant, or to obtain additional insurance coverages.
There is no magic trick to guarantee that no one will ever seize your assets. As with everything in life, it is impossible to anticipate every possible scenario. Nevertheless, if you plan ahead and do your homework, you can put yourself in the best possible position to protect your assets from creditors.
|Aug 29, 2014|
Fighting a Traffic Ticket
We all know the feeling. You’re on the road enjoying a worry-free drive, when you suddenly notice flashing red/blue lights in your rear view mirror. At first, you figure you should change lanes to allow the police car to drive ahead and apprehend the deranged criminal who has run afoul of the local traffic laws. Within seconds, you realize that you are the alleged perpetrator, and pull over to be lectured and cited. In today’s episode, I interview attorney Elliott Malone, a consumer and business law attorney who has successfully defended himself and others in defeating traffic tickets. Fighting a traffic ticket is not easy; however, if you undertake the necessary preparation, research, effort, and time, you will put yourself in the best possible position to beat a traffic ticket, or to negotiate a plea bargain to a lesser charge.*
Knowing your rights, the law, and the procedures are important factors in making educated decisions to limit your exposure to a traffic conviction.
In this episode, we discuss the following steps in detail:
Consider hiring an attorney
Although traffic citations are generally not as serious as other criminal convictions, they still involve hefty fines, increases in insurance premiums, and potential suspension or revocation of driving privileges. Attorneys can be expensive, and may charge a few hundred dollars (or more) to fight a traffic citation. In determining whether you need to hire an attorney, consider the exposure you face if you defend yourself and lose:
– Are you eligible for traffic school to expunge your ticket? If not, how much will your insurance premiums go up over the next few years?
– How many points do you already have on your record? Will an additional conviction subject you to suspension or revocation of your driving privileges?
– Does your job require you to have a clean driving record? If so, will a conviction result in you losing your job?
The advantage of hiring a competent attorney is that he or she will (presumably) know the rules and procedure better than you; and, if traffic tickets are his or her specialty, may know the prosecutor and judge better than you, and therefore be more likely to successfully negotiate a plea bargain or dismissal.
Being represented by an attorney is not a requirement. You could represent yourself- but be prepared to invest the necessary preparation!
Decide whether it is worth contesting your ticket
Not all tickets are worth contesting. As indicated above, evaluate your financial and personal circumstances and determine whether it is worth your time, money, and effort to contest the ticket. Your analysis should include:
– What are your costs?
– If your ticket does not cost you any points, and is payable with a minor fine, you might want to consider paying it off rather than contesting it. This is especially true if you are gainfully employed and would be losing a day’s pay to appear in court.
– Some judges will impose harsher penalties (including disallowing traffic school as a means of expunging your ticket) if you contest a ticket and lose.
– How strong is the case against you?
– What are the charges against you?
– What is the evidence against you?
– Radar guns?
– If the evidence against you is strong, do you still have a colorable claim for why you should be acquitted?
– Do you believe the equipment used to determine your speed was defective or not properly calibrated?
– Do you believe that the video footage was inaccurate or a case of mistaken identity?
– Could the police officer’s account of your driving conduct be inaccurate, mistaken, or false?
– If you did break the law, was doing so necessary to prevent a greater danger (e.g. running a red light to prevent someone from killing you in a high-speed rear-end collision).
– Are you likely to get a plea bargain by pleading guilty?
What to do when you get pulled over
Do NOT be confrontational or aggressive. Always remember that the police officer has no idea who you are. As far as he or she knows, you could be on your way to bible class or a fugitive wanted for murder. Be respectful, courteous, and make the officer feel comfortable. Roll down your window, put your hands on the steering wheel, and cooperate with the officer. Be mindful that the police officer may be taking notes of the encounter. If you are rude or belligerent, he or she might make a note of it for trial, and the encounter might influence his or her testimony.
If the officer cites you (as opposed to a verbal warning) keep the ticket and inspect it for any inaccuracies.
– Is the date and time correct?
– Is the license plate, car description, and location accurate?
– Does the description of the violation contain any mistatements?
– Be sure to hold on to the ticket for use at trial. Make sure you set a calendar reminder to show up at court on the date and time noted!
Researching and preparing for trial
Learn the law. If you are going to argue that you are not guilty, you had better learn everything you can about the statute or regulation under which you were charged, the elements that the state must prove to convict you, and the defenses available to you. Much of this information is available on the Internet and through self-help websites and resources. Check to see if your local courthouse has a self-help section or law library that you can use for your research and preparation.
– Check to see if there are any procedural defenses, such as expiration of the statute of limitations or violation of your right to a speedy trial. If so, you might be able to prevail on those grounds instead of risking conviction on the merits of the case. There is no disadvantage to raising these issues (if you have a reasonable basis to do so); however, in many states you waive these defenses if you do not timely raise them. Do your research!
– Evaluate whether you have other defenses, such as the necessity defense (mentioned above).
– “I didn’t know it was illegal” is NEVER a defense! If you drive a vehicle, you are expected to know the law.
Study and observe the court procedures. Every state has its own procedures for traffic violations. Some states allow you to contest or pay a violation by mail; some require personal appearances. If you have a choice to contest your ticket by mail, check to see whether you would be better off doing so or appearing in person.
– Watch traffic court in session. The best way to learn court procedure is to watch the court in session. Trials are public and you have a right to be present. Sit in the audience, get comfortable, and spend as long as you can (the more the better) watching the proceedings. Take note of the following:
– The roles and personalities of the judge, prosecutor, and defendants.
– Does the judge appear to be lenient or rigid? Is he or she amenable to challenges or unlikely to entertain your arguments? Does he or she have a stated policy of denying traffic school to defendants who lose at trial?
– Dose the prosecutor look reasonable? Does he or she appear likely to offer you a plea bargain to avoid the time and expense of proving the case against you beyond a reasonable doubt?
– What are the court procedures for examining and cross-examining witnesses, exchanging discovery, introducing exhibits into evidence, and conducting yourself in court?
– The longer you observe the court proceedings and the key players in action, the more comfortable you should be with the process.
– On your court date (or prior if possible) approach the prosecutor to see whether he or she is willing to offer you a plea bargain. If so, consider whether it is worth accepting it in lieu of contesting the ticket and risking a higher penalty.
Conduct discovery to learn everything you can about the charges against you.
You are entitled to (and must!) conduct discovery prior to trial to prepare your defense. Discovery is the process by which you may request information and documents from the police officer (or other witnesses or agencies) which are related to the charges against you. Be sure to learn your state’s discovery procedures to ensure you are complying with all requirements.
You should request all information and documents you believe may assist in your defense, and any evidence that might be used by the state to convict you. Here are a few examples:
– Any notes that the officer made relating to the traffic stop.
– Any photographs or video recordings made during the traffic stop.
– Learn everything you can about the internal workings of any equipment used by the police officer, including the police department’s rules and procedures regarding use of that device.
– If you were citing for speeding, be sure to request all information pertaining to the radar gun (or other device) used to measure your speed at the time of the traffic stop. This would include any instruction manuals for the equipment, police manuals and procedures relating to use of the device, the name/model of the device, and any notes, memoranda, logs, or other documents pertaining to the device’s frequency of calibration and maintenance.
– Check to see if any documents mention the device’s margin of error. For example, if you were cited for going 69 mph in a 65 mph zone, and the device has a 5 mph margin of error, you may have a good defense.
– Radar devices require regular maintenance and calibration, which is generally done with special tuning forks.
– You need to find out everything you can about the regularity with which the device was maintained and calibrated; most importantly, you want to know when it was last calibrated prior to your ticket.
– If you learn in the course of discovery that the device was not properly calibrated, or that the officer cannot produce documents establishing proper maintenance and calibration of the device, that is information that may be very useful at trial, as it may create a reasonable doubt as to your guilt.
– If your citation involved video footage of the alleged violation (e.g. failure to stop at a red light) request a copy of all footage and review it to determine its impact. If you believe the footage demonstrates you are not guilty, that may form a strong basis for your defense. Likewise, you may determine that the video footage is certain to lead to your conviction, in which case you may want to explore a plea bargain or simply pleading guilty.
Trial: going all the way
Once you have done all your research and preparation and determined that trial is your best option, be sure to bring all your documents and witnesses (if applicable) with you to court. Be mindful that you will likely need to share any evidence you intend to use with the prosecutor or police officer. Do not attempt to hide anything or you may be sanctioned by the court and lose the trial!
Try not to be nervous. If you are taking this case to trial and have done your preparation, you are already many steps ahead of the game. Be confident!
Remember the importance of cross-examination.
– Unlike direct examination, cross-examination is the process by which each party has the opportunity to ask a witness questions intended to clarify, raises questions about, and explore inconsistencies about the witness’ testimony.
– If the police officer testifies that he or she does not have an independent recollection of the events (and is relying on notes) you may want to point out that there are things that he does not remember that are not contained in the notes, which may help your defense. (Be mindful that you must always be truthful!)
– If the officer says that he or she is testifying from memory, you may want to ask questions designed to test that memory. These may include the following: (1) What was the weather that day? (2) What was the weather the day before and after? (3) What did you eat for lunch that day? (4) What was I wearing? If you are able to raise a legitimate doubt in the judge’s mind about the officer’s recollection of events, you may be able to obtain an acquittal.
– Your cross-examination should include questions about matters that you believe negate the strength of the officer’s testimony. For example, if the officer observed the alleged traffic violation from a great distance, you would want to know how far away he or she was, and whether that may impact the reliability of the testimony.
– Remember that cross-examination involves examination (i.e. questioning)- it is not the time to make an argument to the court!
– If you have the opportunity to make a closing argument, use it to point out to the judge the reasons you believe you are not guilty, and the inconsistencies and problems (if any) with the officer’s testimony.
– If you lose at trial and intend to appeal, be mindful that you need to follow all the appropriate procedures to preserve your right to appeal, and must do so in a timely manner.
Remember… drive safely!
* Neither this podcast episode nor these show notes constitutes legal advice or attorney-client communications. When assessing your legal rights, it is highly recommended that you retain an attorney licensed in your state, who is knowledgeable of your state’s laws and court rules.
|Aug 22, 2014|
Inside the Jury Box: Right to a Jury Trial | Jury Composition and Selection | Jury Nullification
Few features of the American legal model are less understood than the jury system. For most people, the first introduction to juries comes in the form of a long-dreaded summons for jury service, which has an uncanny tendency to arrive during the busiest and least convenient times. For those unfortunate to be involved in a civil lawsuit or charged with a crime, the thought of being judged by a selection of 6-12 strangers can be a scary thought. In today’s episode, we will cover: (1) the right to a jury trial; (2) how juries are selected; (3) what is the function of the jury and how does it differ from that of a judge?; (4) how juries deliberate and make decisions; and (5) the phenomenon of jury nullification, whereby a jury consciously disregards the law and acquits a criminal defendant based on social or moral reasons, to show disapproval for a law, or when it feels that the law is unjust.
– The United States Constitution guarantees a jury trial for the majority of civil and criminal actions.
– Article III, section 2 states: “The trial of all crimes shall be by jury and such trial shall be held in the state where the said crimes have been committed.”
– The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state where the said crimes shall have been committed.”
– The Seventh Amendment provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re–examined in any Court of the United States, than according to the rules of the common law.”
– Trial by jury offers parties several important advantages over one in which a judge is the trier of fact:
– Jurors come from a variety of socioeconomic backgrounds, racial and ethnic origins, and bring their own life experiences and wisdom to the jury, leading to more thorough discussion and analysis by the jury as a whole.
– Juries often reflect the common values of the community and therefore often render decisions in conformity with those values.
– In theory, it would be easier to bribe or corrupt a single judge than numerous jurors.
– By contrast, juries may be susceptible to the following problems:
– Juries may be more likely than judges to fall for demagoguery, rhetoric, and passions of attorneys, and therefore may reach verdicts that are at odds with the evidence.
-As members of the community, juries may vote in line with their prejudices, which may disadvantage defendants on the basis of race, socioeconomic background, gender, sexual orientation, etc.
– Strong-minded and vocal jurors may overpower and pressure mild-mannered ones.
– Jurors may have difficulty understanding complicated matters (e.g. pharmaceutical patents, electric configurations, financial schemes, etc.) that would be easier understood by a judge.
– In criminal cases, a jury, not a judge, must determine whether aggravating circumstances exist to increase a defendant’s sentence or impose the death penalty. (See Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296). In Apprendi, the Supreme Court held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.”
– As previously noted in The Legal Seagull Tidbit for LS 007: Is Teacher Tenure Unconstitutional?, every defendant has a constitutional guarantee of an impartial jury by members of his or her own community, which includes a broad and fair representation of the community, especially with respect to race, ethnicity, and gender. This guarantee applies to the jury pool from which a jury is selected- it does not mean that a person has a right to a jury of his or her own particular race, ethnicity, or gender.
Functions and Duties of a Jury
– The jury is charged with listening to witness testimony and experts, reviewing physical evidence and documents, and any other evidence, and making factual findings. Juries must evaluate the credibility of witnesses, the strength of the evidence presented and whether it is compelling and reliable, and to determine which parties should prevail (if any).
– The judge, by contrast, conducts the trial by interpreting the law and instructing the jury as to substantive and procedural laws, jurors’ responsibilities, and the deliberations process. In criminal cases, the judge usually imposes the sentence (subject to certain limitations, discussed below).
– Juries are asked by the judge to evaluate the testimony and evidence presented at trial and to follow the court’s instructions in determining whether the law has been violated or a party is entitled to recover in a civil suit.
– In cases where there are no disputed material issues of fact, the judge may determine upon appropriate motion (e.g. motion for summary judgment, motion for judgment on the pleadings, motion for directed verdict, etc.) that there are no disputes as the to the major allegations, and that the only question left for the court to decide is a legal one, which is best decided by a judge.
– Example: Paul sues Donald over wrongful termination under Statute A. Paul and Donald agree as to all the material facts in the case, including the fact that Paul had an independent-contractor employment relationship with Donald’s company. The only issue left for the court to decide is whether under Statute A, independent contractors are entitled to sue for wrongful termination. Here, there are no factual issues for the jury to determine, and all that remains is a legal question. In this example, it would be appropriate for the judge to rule that a jury is not necessary (indeed improper).
How is a Jury Selected?
– Parties may waive the right to a trial by jury, and instead elect to have the case decided by a judge. This is generally referred to as a bench trial or court trial.
– Jurors are summoned for jury duty based on information obtained from public records (e.g. electoral rolls, drivers’ licenses, etc.). The people summoned are referred to as the “jury pool.”
– Once arriving at the courthouse, a clerk will typically assign potential jurors to fill the jury box. At this point, the judge or lawyers will ask the jurors if there is any logistical/financial/person reason they cannot serve (e.g. family hardship, financial difficulties, pre-planned trips to leave town, etc.). The judge may excuse potential jurors for service on those grounds; however, employment commitments are rarely persuasive to judges, as they apply to most people and employers are prohibited by law from discriminating against an employee based on jury duty.
– After some potential jurors are excused, the judge or lawyers (depending on jurisdiction) ask the jurors a series of questions about their backgrounds and beliefs in order to obtain their appropriateness as jurors, whether they have any biases, prior knowledge of the case, or know any of the parties or lawyers involved in the case. This process is known as voir dire.
– After or during voir dire, the parties and judge may excuse any party for cause, meaning that the person cannot reasonably be expected to be an impartial juror. Examples of a removal for cause may include the following:
(1) A person that is employed or otherwise affiliated with a party the action.
(2) A person that has a family member as a juror.
(3) In the selection of a jury for a criminal case, a person that has been the victim of a similar crime and who believes that he or she cannot evaluate the defendant’s case impartially. Likewise, a person who claims to be a victim of police brutality or prosecutorial misconduct may not be expected to be impartial.
(4) A person who states that he or she holds such strong racial/ethnic/gender biases that would preclude a fair evaluation of the evidence.
– In addition to an unlimited number of dismissals for cause, each party may dismiss a limited number of jurors, depending on the jurisdiction. These are referred to as peremptory challenges.
– Peremptory challenges may be may for any reason except one prohibited by law (i.e. race, ethnicity, gender). (See Batson v. Kentucky (1986) 476 U.S. 79, holding that jurors in a criminal case cannot be excused based on race; Edmonson v. Leesville Concrete (1991) 500 U.S. 614 extended this right to civil cases; J.E.B. v. Alabama (1994) 511 U.S. 127 holding that “gender, like race, is an unconstitutional proxy for juror competence and impartiality”).
– In selecting juries for high-profile cases, some attorneys use jury consultants- individuals with backgroudns in law, psychology, or sociology who understand (or claim to understand) juries’ deliberations, decision-making process, and the opinions of the parties and evidence presented. Jury consultants can be expensive, with an average cost of $250-$300. Jury consultants offer the following services:
(1) Analysis of whether the parties provoke strong personal reactions from the jurors, good or bad;
(2) Discovering undisclosed biases of jurors.
(3) Observing jurors during court sessions and breaks to determine their levels of attention and leanings, and to see which jurors appear to be socializing, to determine whether “cliques” are forming. Many jury consultants claim to be able to analyze the facial expressions and body language of jurors.
(4) Pre-trial investigation to determine what attributes and backgrounds the attorneys should seek in selecting a jury.
– As a tactical matter, diligent attorneys will attempt to have a case tried in the most favorable venue possible.
– Jury verdicts need not always be unanimous.
– In federal court, jury verdicts must be unanimous, unless agreed otherwise by the parties.
– Each state may decide whether jury verdicts must be unanimous.
– In criminal cases, every state except for Oregon and Louisiana requires a unanimous verdict.
– Notably, both Oregon and Louisiana require unanimous verdicts in capital cases.
– The U.S. Supreme Court has given some indications that it may review the constitutionality of non-unanimous verdicts in criminal cases. For a great blog entry on this topic, read Non-unanimous criminal jury verdicts by Eugene Volokh.
– In civil cases, about one-third of states require a unanimous verdict. The rest allow for a majority verdict.
– If a jury cannot reach a verdict after exhausting the deliberations process, this is referred to as a “hung jury.” Under most circumstances, the judge will excuse the jury and declare a mistrial. The parties will then determine whether to retry the case before another jury.
– At the conclusion of all testimony and evidence, the judge will provide jury instructions that explain the law and procedure, and verdict forms, to the jury. Each party’s attorney may suggest its own instructions, or use standard judicial forms. The judge, outside of the presence of the jury, decides which instructions comply with the law and should be given. Jury instructions are appealable in the event of an adverse verdict, and in fact form the basis of a significant number of appeals.
– After being instructed as to the law, the jurors convene in the deliberations room, where they may be provided with certain exhibits and transcripts (depending on the judge).
– There is no set format for jury deliberations, and these take place outside of the presence of the judge, attorneys, clerks, and any other court spectators. Jury deliberations may take only minutes, days, or even weeks. They may be civil, but are often contentious, with some jurors attempting to impose their opinions on the other jurors. Despite this, juries almost always reach a verdict.
– If the jury does not understand the instructions, or has any other questions relating to the law, the evidence, or the testimony, it may submit a note to the judge. Then, in the presence of the attorneys and parties, the judge reads the note and determines how to respond.
– Once the jury has reached a verdict, it signs the verdict form and delivers it to the court. The jury is then brought in, and the verdict announced.
– After the verdict, the attorneys are generally permitted to ask the jurors how they reached their decision, and their opinions of the case, the evidence, and the parties themselves. However, attorneys must be respectful of jurors’ right to not speak with them.
– As mentioned above, jury nullification involves a jury’s conscious disregard of the law and the evidence in a criminal case, to show disapproval for the law, rejection of perceived prosecutorial overreach, or other social considerations.
– Jury nullification has a long history that pre-dates the founding of the United States:
– Salem witch trials (1690s)
– Fugitive slave laws (1850s)
– Freedom to strike (late 1800s)
– Alcohol prohibition (1930s).
– Jury nullification is most common in drug trials, and in particular marijuana, when a jury feels that the defendant committed the crime for which he or she is charged, but nonetheless believes the conduct should not be criminal or that the defendant need not be fined or incarcerated.
– Jury nullification is a “two-edged sword” which can be used for sinister purposes too. It has been used by juries to acquit defendants of the murder of racial minorities, even in case where the evidence of guilt was overwhelming.
– Jury nullification is not sanctioned as a proper function of a jury. As previously noted, the jury is is ordinarily charged with finding facts, not deciding the appropriateness of the law or whether it should be disregarded in favor of a particular defendant. That being said, the U.S. Supreme Court has never held that the jury does not have the power of nullification. However, it held in Sparf v. United States (1895) 156 U.S. 51 that trial judges were not required to inform juries that they may nullify a verdict.
– In Unites States v. Moylan (1969) 417 F.2d 1002, the Fourth Circuit U.S. Court of Appeals held, “If the jury feels that the law under which the defendant is accused is unjust, or exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the right to acquit, and the courts must abide by that decision.”
|Aug 15, 2014|
Native Americans and the Law
Native American law (or “Indian law” as it is sometimes called) lies at the intersection of federal, state, and tribal laws, some of which pre-date the arrival of European colonists in North America. In today’s episode, we discuss the nature of Indian law, its origins, applications, powers, jurisdictional issues, and sovereign immunity.
I interview Thomas Weathers, an attorney with an active Indian law practice. Mr. Weathers is an Aleut and an enrolled member of the Qawalangin Tribe of Unalaska. He and I discuss the following in detail:
– The origins of Native American law, both before and after the arrival of Europeans. Article 1, section 8 of the U.S. Constitution empowers Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Constitution, however, in particular the Bill of Rights, does not apply to Indian tribes. In 1968, Congress passed the Indian Civil Rights Act, which extended most of the Bill of Rights to Indian tribes.
– As with the federal and state governments, Indian tribes enjoy sovereign immunity- they cannot be sued without their consent. Consent can be express, as when a Congressional statute specifically provides for a right to file lawsuits against a tribe. Tribes may also affirmatively waive their rights to sovereign immunity by entering into contracts that provide for other parties to seek redress in alternate forums (e.g. arbitration clauses that allow awards to be enforced in state or federal courts). In the absence of Congressional action or affirmative waiver by tribes, they are generally immune from lawsuits.
– Tribal courts retain jurisdiction over most civil and criminal matters involving Indians; however, they have virtually no jurisdiction over non-Indians. Mr. Weathers discusses a few different factual scenarios to illustrate how jurisdictional issues may arise.
– Mr. Weathers discusses some recurrent issues involving Indian law as it pertains to state business and contract law, and to commerce between Indians and non-Indians.
|Aug 08, 2014|
Marijuana and the Law: Legalization | Federal Preemption | Policy Considerations | Interview with NORML Founder Keith Stroup
In November 2012, voters in Colorado and Washington passed ballot initiatives legalizing the recreational use of marijuana. In the aftermath of legalization by these states, pundits continue to discuss the wisdom of expanding legalization of marijuana, a substance that remains illegal under federal law as a Schedule I drug (together with heroin, LSD, ecstasy, methaqualone, and peyote). Has the legalization experiment in Colorado and Washington demonstrated that there is no longer a compelling basis to criminalize recreational marijuana use? Alternatively, has legalization negatively impacted the social and economic fabric of these states, such that further attempts at state legalization should be resisted? With marijuana legalization initiatives expected to pass in more states in 2014 and 2016, many questions remain. To answer these, I interview Keith Stroup, founder and legal counsel of the National Organization for the Reform of Marijuana Laws (NORML).
After founding NORML in 1970, Mr. Stroup is in his fifth decade of advocating for reform of state and federal marijuana laws. Mr. Stroup and I discuss the following issues in detail:
– The enduring arguments in favor of marijuana legalization, most notably the adverse social and economic impacts of subjecting otherwise law-abiding citizens to criminal penalties for recreational marijuana consumption.
– The conflict between state laws legalizing marijuana and federal prohibition. There is a positive conflict between these laws, which under the Supremacy Clause of the U.S. Constitution, renders federal law supreme. Despite this, the Obama Administration has elected not to enforce the federal ban (e.g. has not sought court injunctions or deployed federal agents to arrest and prosecute marijuana distributors and purchasers). In a series of legal memoranda, the U.S. Department of Justice has declined to enforce the federal ban in Washington and Colorado, except in certain circumstances.
– The future of marijuana legalization, which is expected to spread to other states by ballot initiatives. There is also increased support for easing federal restrictions on marijuana for medicinal purposes, and some pending bills have even attracted the support of a few conservative Republicans.
– Shifting societal views of marijuana most notably due to changing demographics.
|Aug 01, 2014|
Understanding Self-Defense Law
The law of self-defense authorizes* a person, under certain circumstances, to use otherwise unlawful force (even deadly force) to repel an imminent threat of bodily injury or death. Self-defense laws differ among federal and state jurisdictions. Generally, a person claiming self-defense must prove that he/she:
1. Was not the initial aggressor or provoked the victim; and
In this episode, we go over each of the above elements and explain what a defendant needs to do to prove a successful self-defense claim. We also discuss the related doctrines of “Stand Your Ground” laws, the Castle Exception, and Battered Wife Syndrome as it applies to self-defense cases.
Defendant Must Not Be Initial Aggressor
– In order to successfully claim self-defense, a defendant cannot be the initial aggressor, meaning he cannot provoke the victim and then claim self-defense. Mere words do not generally amount to “aggression” or “provocation”; however, affirmative unlawful conduct, such as threatening the victim with a weapon or with physical conduct, may amount to initial aggression.
– In United States v. Peterson (1973) 483 F.2d 1222, the defendant went outside of his house to find the victim and others stealing his windshield wipers. He confronted them verbally, and a short argument ensued. He then went into his home and returned with a pistol. At that point, the victim and companions had already returned to their car and were preparing to leave. The defendant aimed his pistol at the victim and instructed him not to leave. Further argument ensued, and the victim then retrieved a lug wrench from the vehicle and approached the defendant, who shot and killed him. The D.C. Circuit United States Court of Appeals held that the defendant, having escalated the situation by returning with a pistol and preventing the victim from leaving, was the initial aggressor and therefore not entitled to claim of self-defense. In support of its holding, the Court of Appeals noted that the victim and his companions had already returned to their vehicle and were preparing to leave, such that the defendant’s subsequent conduct was unreasonable.
An Imminent Threat is an Immediate One
– Only an imminent (i.e. immediate) threat of serious bodily harm or violence entitles a defendant to protection under the self-defense doctrine. Mere possibility of a threat, or a future or conditional threat, does not qualify as imminent.
– Example 1: Defendant is confronted by angry victim at a bar, who is running towards him with a knife. This is an imminent threat probably entitling the defendant to engage in deadly force.
– Example 2: Defendant is confronted by angry victim at bar, who does not appear to have any weapons. The victim warns, “if I see you talking to my girlfriend again tonight, I’m going to kill you.” This conditional threat would likely not qualify as imminent.
– Example 3: Defendant is confronted by disgruntled client who says “one of these days I might just kill you.” This is a speculative future threat that would likely not qualify as imminent.
– In People v. Norman (1989) 324 N.C. 253, a woman was convicted of voluntary manslaughter for shooting her sleeping husband in the back of the head several times. The undisputed facts established that the defendant had been subjected to severe physical and verbal violence over a 25-year marriage, up to and including the two days preceding his death. Earlier on the day of his death, the husband had threatened to cut his wife’s throat if she complained to the police. Expert testimony was introduced at trial that she suffered from Battered Wife Syndrome and believed she was subjected to a life of misery and pain, and that death at his hands was “inevitable.” The North Carolina Supreme Court reversed the holding of the appellate court, and ruled that the defendant was not entitled to a jury instruction for perfect self-defense, since there were no facts that would support a finding of a reasonable fear of imminent bodily harm of death. The Court clarified the distinction between “imminent” and “inevitable” and held that the latter does not entitle one to the protections of the self-defense doctrine.
Honest and Reasonable Belief of Imminent Threat and Necessity of Force
– The defendant’s belief that force is necessary to repel an imminent threat of injury or death must be both honest and reasonable.
– An honest belief is a subjective inquiry- did the defendant actually have this belief at the time he used violence? On the other hand, reasonableness is an objective inquiry- assuming the defendant’s belief was honest, was it reasonable for a person in his situation (jury may consider subjective factors) to believe that he was facing an imminent threat and that violence was necessary to combat that threat?
– People v. Goetz (1986) 68 N.Y.2d 96 demonstrates the difficulty that juries sometimes have in assessing reasonableness. The defendant was a passenger on a New York City subway train who was approached by four youths who requested (or demanded, according to him) that he give them five dollars. Believing that he was about to be mugged and “maimed,” the defendant pulled out an unlicensed pistol and shot the four unarmed youths, even as two of them attempted to flee. He then approached one who was apparently sitting down, walked over to him, and said, “You don’t look so bad. Here’s another.” The shot severed the victim’s spinal cord, leading to life-long paralysis.
– The defendant’s statements to police reveal he interpreted the youths’ conduct (e.g. body language, demeanor, and facial expressions) to be menacing, and believed he was about to be mugged. He also claimed he had been mugged on several occasions in recent years. The chilling testimony revealed that although Goetz probably entertained an honest believe that he was in imminent danger of serious bodily harm, he did not reasonably need to use deadly force to repel that threat. In fact, during interrogation he told a detective in a recorded interview: “My intention was to murder them, to hurt them, to make them suffer as much as possible.”
– Despite the ominous facts of this case, and the defendant’s own statements of his intentions, he was acquitted of attempted murder. His only conviction was for possession of an unlicensed firearm. The consensus at that time, and even today, is that the jury disregarded the law and was willing to accept a certain degree of vigilantism, especially considering the climate of fear and crime in 1980s New York City.
– The Goetz case reveals the difficulties that juries have in assessing the element of reasonableness. Moreover, it did not go unnoticed that the defendant was Caucasian and the victims were African-Americans. The case ignited debate about the effects of race in claims for self-defense, both in terms of a defendant’s assessment of danger and a jury’s determination of reasonableness.
Proportional Force to that of Aggressor
– A defendant’s use of force must be proportional to the threat perceived. Accordingly, the use of deadly force must be proportional to the threat posed by the victim.
Duty to Retreat
– At common law, a person, prior to using deadly force, has a duty to retreat from a situation, if it is possible to do so with complete safety.
– Example 1: Defendant sees victim running towards him with a knife approximately 30 feet away. The defendant pulls out a pistol and shoots the victim. Here, there is likely no duty to retreat. The victim’s proximity to the defendant would render any attempt to flee dangerous for the defendant, and a retreat could not be accomplished with complete safety.
– Example 2: Defendant sees victim running towards him from about 1000 feet away, yielding a knife. The defendant, an able-bodied man, is standing right next to his car, and has plenty of time to get in his car and drive off. Under these circumstances, the defendant has a duty to retreat prior to using deadly force.
– Many states still retain the duty to retreat; however, some have enacted the following exceptions:
– Castle Doctrine: a person has no duty to retreat from an aggressor in his own home (some states extend this to a business). This derives from centuries-old English common law, which gave birth to the idiom, “An Englishman’s home is his castle.” This exception is based on the notion that a home is a person’s ultimate place of sanctuary, and that he should never have to flee it when faced with an imminent threat of serious injury or death.
– “Stand Your Ground” laws: these laws remove the duty to retreat from any place where the defendant may lawfully be present. We discuss these laws, which have garnered significant media attention and criticism from criminologists and public figures, especially since the recent Florida v. Zimmerman (2013) trial, which ended in an acquittal for Zimmerman. We go over some seldom-discussed aspects of this case, including the misconception that Florida’s “Stand Your Ground” law had an impact on its outcome.
|Jul 25, 2014|
All About Trademarks | Washington Redskins Trademark Controversy
n this episode, we discuss trademarks: what they are; what they protect; what they cannot protect; the aspects of a protectable mark; grounds for cancellation; and, how courts determine whether a trademark has been infringed. The discussion includes trademark issues and disputes involving many infamous brands, such as Coca-Cola, Apple, Xerox, Q-Tips, Kleenex, Google, and more. We also discuss the ongoing controversy surrounding the recent decision by the Trademark Trial and Appeal Board to cancel the Washington Redskins’ trademark from the federal trademark register.
We discuss the following in detail:
– Trademarks are governed by both common law and the Lanham Act, a federal statute codified at 15 U.S. Code section 1051 et seq. Section 1127 of the Lanham Act defines a trademark as “any word, name, symbol, or device, or any combination thereof—(1) used by a person, or (2) which a person has a bona fide intention to use in commerce and applies to register on the principal register… to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.”
– The advantages of registering a trademark, including the presumption of ownership; constructive notice to the public of a claim of ownership; incontestability after five years (subject to exceptions); the right to sue for additonal remedies, including treble damages; the right to sue in federal court; and more.
– The test for proving infringement is “likelihood of confusion,” meaning the likelihood that consumers will mistake the products or goods as originating from the trademark owner. There is a split among federal circuits as to the proper test to determine a likelihood of confusion. The Ninth Circuit follows the test delineated in AMF, Inc v. Sleekcraft Boats (1979) 599 F.2d 341, which includes: (1) the strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) the defendant’s intent in selecting the mark; and (8) the likelihood of expansion of the product lines. The Second Circuit uses a similar, slightly more complicated, 13-part test known as the Dupont factors, as outlined in the decision in In re E.I. du Pont de Nemours & Co., (1973) 476 F.2d 1357.
– The spectrum of marks and levels of protectability:
(1) Fanciful: words or phrases that have no meaning until adopted by the product, and are usually “made up.” Examples are Kodak, Xerox, Exxon, and Google. Fanciful marks receive the highest level of protection and are easiest to register.
(2) Arbitrary: These are actual words that do not have any meaning or connection to the product. Examples of arbitrary marks are Apple (as applied to computers); Blackberry (phones); Lotus (software); and Penguin (publishing). Arbitrary marks also enjoy extensive protection and are generally not difficult to register.
(3) Suggestive: actual words that in some way identify a product’s type, quality, or nature, but require some imagination to form a link in consumers’ minds. Examples are Greyhound (buses/transportation); Playboy (adult magazines); Wet Ones (moist wipes); and Wite-Out (for correcting typographical errors).
(4) Descriptive: merely describe the goods or services, and do not require any mental leap or imagination on the part of the consumer. Merely descriptive marks can only be registered or protected if they acquire “secondary meaning” (i.e. consumers have come to recognize the trademark to apply to a particular product and have an appreciation for its actual source or origin). Examples of descriptive marks that have acquired a secondary meaning and therefore protection: Sharp (TVs); 99 Cents Store; and Kentucky Fried Chicken.
– (5) Generic: terms that actually describe the product or genus of goods, and are the common name for the good. These marks are never protectable and cannot be registered. Examples: basketball; ketchup; shampoo; carpenter; and mobile phone.
– The doctrine of “genericide,” whereby a company that once maintained an active and valid trademark could loses its rights by virtue of its acceptance into common vernacular as a generic way of describing the product. Examples of trademarks doomed by genericide are escalator, lanolin, aspirin, pilates, thermos, and cellophane. Many successful brands, including Q-Tip, Kleenex, Xerox, and Google, invest extraordinary efforts to prevent their marks from falling into generic use.
– Evidence establishing that a mark has become generic may include consumer surveys and whether the word has entered a dictionary (usually good evidence that a term has become common-place and accepted).
– Section 1052 of the Lanham Act delineates bars to trademark registration: (1) deceptive, immoral, or scandalous; (2) geographically descriptive; (3) surnames; (4) descriptive; (5) disparaging; and (6) functional.
– Goods and services that are deemed “functional” are generally not protected. “Functionality” refers to aspects of the good or service that involve useful inventions, features, or specifications, which would normally be within the purview of patent law. In Inwood Laboratories v. Ives Laboratories (1982) 456 U.S. 844, the U.S. Supreme Court defined functional features as “essential to the use or purpose of the article or if it affects the cost or quality of the article.” The public policy rationale behind disallowing trademark protection for functional marks is that granting a trademark would essentially deprive competitors of the right to produce commercially viable and appealing goods and services. An example is black engines for boats, which are (apparently) aesthetically appealing and properly match the colors of many boats.
– “Trade dress” refers to the packaging, appearance, product configuration, shape, characteristics, design or traits of non-phrase marks. Examples include the distinctive packaging of Red Bull (four-pack of slim silver cans); Tiffany jewelry (small, distinctive light blue boxes); and a McDonalds store configuration (you’ve been to McDonalds, right?) Trade dress is generally protectable and registrable, unless it is deemed to be functional in nature.
– Washington Redskins trademark cancellation and upcoming appeal:
– Section 2(a) of the Lanham Act prohibits registration of marks that are “disparaging.” In this case, the marks at issue were registered many years ago. In order to prevail on the claim that these marks are not protectable, the parties challenging the trademarks must prove that they were disparaging to a “substantial composite” of Native Americans at the time of registration, not necessarily at the present time.
– The current case is not the first time the Trademark Trial and Appeal Board cancelled the Redskins’ trademarks. They were first cancelled in 1992, after which a flurry of appeals followed, ending with the D.C. Circuit U.S. Court of Appeals affirming the U.S. District Court’s findings that the challengers’ case was barred by the doctrine of laches (i.e. inexcusable delay in bringing the lawsuit in a manner that prejudices the rights of the other party). For a good explanation of the prior action, check out Divided TTAB panel cancels six Redskins trademarks on disparagement grounds.
– Will the challenge ultimately succeed? What constitutes a “substantial composite” of Native Americans? What evidence has been presented to support a finding of disparagement? Tune in to find out more!
Until next time, stay legal!
|Jul 18, 2014|
Is Teacher Tenure Unconstitutional? Tenure Under Scrutiny | Interview with Attorney Josh Kuns
In the recent case Vergara v. California, a trial judge ruled that California’s teacher tenure laws violated the California Constitution by depriving students of their rights to a quality education. In this episode, Josh Kuns, an employment litigation attorney, explains the ruling, including the evidence and statistics presented; the policy behind tenure laws; the arguments for and against teacher tenure protections; policy considerations; the likelihood of further state and federal challenges to teacher tenure; and, the potential implications for employment litigation and the education system.
If you would like to learn more about the Vergara decision, check out Josh’s article, Public School Students Sue California; Court Rules Fundamental Right to “Quality of Education.”
|Jul 11, 2014|
Recent Landmark Supreme Court Rulings: Warrantless Cell Phone Searches | First Amendment Cases (Abortion Buffer Zone and ACA Contraceptives Mandate) | and More!
June 2014 was a fascinating month for the law, with several significant rulings by the U.S. Supreme Court. The Court unanimously held that warrantless cell phone searches by police are unconstitutional (with few exceptions) and that a Massachusetts law requiring a 35-foot buffer zone outside of abortion clinics violates the First Amendment. In another groundbreaking decision in Hobby Lobby, the Court ruled that as applied to closely-held for-profit corporations, the Affordable Care Act’s provision mandating that employers provide contraceptive care against the employers’ convictions violates the Religious Freedom Restoration Act of 1993. Not all Supreme Court decisions affect the Average Joe, but each of these holdings has important implications for the ordinary citizen. This episode discusses these decisions in detail, as well as other interesting cases and legal issues from June 2014. The episode begins with a discussion of some recent cases from around the country:
– The Missouri Supreme Court held that a flying hotdog, which was thrown by an MLB team’s mascot and hit a spectator in the eye, is not an assumed risk of watching a sports event.
– A new phone app launched in San Francisco allows users to bid on public parking spots in a “peer to peer auction.” This has run afoul of San Francisco’s laws and drawn the ire of its city government.
– A woman is suing the New York City MTA after being spooked by an advertisement for the show Dexter, which allegedly caused her to fall and sustain injuries.
– The U.S. Patent and Trademark Office canceled the Washington Redskins’ trademark on grounds that it is disparaging to Native Americans.
– New York’s highest court struck down former Mayor Bloomberg’s ban on large soda drinks in a death blow to that regulation.
– The Ninth Circuit Court of Appeals ruled that potential jurors cannot be excluded on grounds of sexual orientation.
– A California trial judge struck down California’s teacher tenure laws as unconstitutional.
– The NFL has reached a settlement to compensate former players for neurological injuries sustained as a result of repeated concussions. This settlement has no cap on damages and provides up to $5 million for each affected player over a 65-year eligibility period.
The episode proceeds with a discussion of three recent U.S. Supreme Court cases: Riley v. California (warrantless cell phone searches); Burwell v. Hobby Lobby (ACA contraceptives mandate); and McCullen v. Coakley (abortion buffer zone):
Riley v. California
This case involves two defendants convicted of crimes based on information obtained from their cell phones, which were searched incidental to their arrests. Petitioner Riley was tried and convicted in California, and petitioner Wurie was convicted in a federal district court. Accordingly, the respondents were the State of California and the federal government, both of which argued that these searches were necessary and not unconstitutional.
The Court rejected the respondents’ arguments and held that warrantless searches are unconstitutional, unless exceptional circumstances exist, such as an emergency (e.g. terrorism, ticking bomb, etc.).
– The Fourth Amendment bans unreasonable searches and seizures.
– In U.S. v. Robinson (1962), the Supreme Court held that upon lawful arrest, the police may search a suspect’s person and effects even if there are no concerns for destruction of evidence or danger to police officers. In that case, defendant was arrested and his cigarette pack was searched, revealing drugs.
– The Supreme Court held in Chimel v. U.S. (1969) that when lawfully arresting a suspect, the police may search his immediate vicinity if there is a concern that evidence will be destroyed or of danger to the police officers.
– The respondents urged the Supreme Court to extend Robinson to the instant case, arguing that a cell phone was a personal effect similar to any other.
– The Court rejected the respondents’ arguments, holding that in light of their tremendous storage capacity and the private nature of their contents, cell phones implicate greater privacy concerns than other effects. Moreover, the concerns present in Chimel and Robinson do not apply to the digital contents of cell phones, which cannot be used as a weapon against the police. Moreover, the Court found there is little concern for destruction of evidence.
Burwell v. Hobby Lobby
The Supreme Court held that as applied to closely-held corporations, Department of Health & Human Services (“HHS”) regulations imposing contraceptives coverage on employers violates the Religious Freedom Restoration Act of 1993 (“RFRA”). At issue were four out of twenty contraceptives mandated by the HHS, including two intrauterine devices (“IUDs”) and two “morning after pills,” which the petitioners argued constituted abortion, a practice that violates their religious beliefs.
RFRA forbids the ““[g]overnment [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
The Court held:
– Closely-held for-profit corporations are protected under the RFRA. The Court rejected the respondents’ arguments that it was intended by Congress to apply solely to people and non-profit corporations.
– The HHS mandate substantially burdens the petitioners’ religious beliefs by requiring them to either be complicit in a practice that violates their religious convictions or pay massive fines.
– The Court agreed with the government that it has a compelling government interest in providing free or affordable contraceptives; however, the HHS mandate is not the least restrictive way of furthering that interest. The government has less intrusive options, such as providing contraceptive care itself, or extending an accommodation to closely-held corporations similar to that extended to religious organizations.
The episode goes on to discuss the potential implications of the decision, which the dissenting justices predict will open a floodgate of litigation and allow employers to object to a wide array of laws that they believe run contrary to their religious beliefs.
McCullen v. Coakley
In 2007, Massachusetts amended its Reproductive Health Care Facilities Act to make it illegal for any person to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.”
The petitioners claimed that the buffer zone violated their First Amendment rights by making it difficult or impossible for them to engage in “sidewalk counseling,” which involves engaging and providing women entering abortion facilities with information about alternatives to abortion.
The Supreme Court held unanimously that the statute violated the petitioners’ First Amendment rights:
– The First Amendment affords special protection to sidewalks and public walkways. However, governments may still restrict the time, place, and manner of speech, as long as the restrictions are content neutral (i.e. not based on the type or nature of the speech), and provided that the restriction is not more intrusive than necessary.
– Massachusetts does have a legitimate interest in maintaining the sidewalks to protect the public and to allow access to the sidewalk and the abortion facilities.
– However, Massachusetts failed to prove that it did not have alternatives that were less restrictive of the petitioners’ First Amendment rights. The Court pointed out that Massachusetts already had laws in effect to protect people from harassment and violence, and that it could enact further laws. Moreover, Massachusetts failed to produce evidence that law enforcement was ill-equipped to deal with potential violence, intimidation, or intentional obstruction of the entrance to abortion clinics.
|Jul 04, 2014|
Legalese: The Strange Language of Lawyers | Interview with Gary Kinder
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Neer Lerner, a natural person of sound mind and body, proprietor of The Legal Seagull Podcast, hereby bargains, assigns, and transfers the herein-described audio content to his listeners*! This over-the-top, convoluted, and archaic introduction is written in a difficult language called “legalese.” Legalese is not officially recognized by the United Nations or even by linguists or anthropologists. It refers to the unique tongue of lawyers. It is hard to describe the main attributes of legalese, but it sounds like a hybrid of old Shakespearean English, with words borrowed from Latin and French, and even a hint of robot-speak.
The main characteristics of legalese are, including but not limited to (you see, even I am not immune to the legalese epidemic!):
1. Overly verbose and lengthy sentences;
2. Words that are intended to eliminate ambiguity, but paradoxically only add to the confusion;
3. Improper grammar and sentence structure; and
4. Use of the passive voice
In this episode, I interview Gary Kinder, an expert in legal writing and in writing clearly, concisely, and to the point. For many years, Gary has trained lawyers at this nation’s most prestigious law firms, large corporations, and even courts, to eliminate unnecessary words and phrases to write more persuasively and clearly. A few years ago, he and his team of engineers created Wordrake, an incredible piece of software that, in a matter of seconds, scans your text and helps you identify inefficiencies, with the option of “raking” any unnecessary clutter to convey more meaning to your readers.
Gary and I discuss the following:
1. The origins of legalese and why it continues to pervade legal writing;
2. How legalese negatively impacts both lawyers and the public;
3. The birth of Wordrake and how it works; and
4. Practical advice as to common forms of legalese in writing, and how to detect and avoid them.
Wordrake: You can try the software for free for 30 days. If you wish to purchase it, you may use the coupon code “Seagull” for a 5% discount. In the interest of full disclosure, please note that I earn a commission on purchases made with the coupon code. This does not in any way affect my recommendation- I have used Wordrake and found it to be outstanding, but I want you to be fully informed of the fact of my commission arrangement.
Write to the Point: sign up for Gary’s newsletter, which contains lots of free valuable tips about effective writing.
The Nature of Legal Writing by Peter Tiersma: A great article postulating some interesting theories of the rise of legalese and its continuing use.
In light of the foregoing arguments, and the above-mentioned recommendations as stated in full herein, may we stipulate to confer again in the next episode. Stay legal!
* For purposes of illustration only. I still reserve all rights and avail myself of all applicable intellectual property protections. Just sayin’.
|Jun 26, 2014|
The Americans with Disabilities Act: Used and (Sometimes) Abused
We’ve all heard about the Americans with Disabilities Act (“ADA”), but only a select few understand what it is, how it works, and what classes of people it protects. For many of us, our only familiarity with the ADA is that moment we
I will also discuss the unfortunate byproduct of this monumental civil rights statute—abuse by a number of unscrupulous attorneys and serial plaintiffs, who sometimes use unethical legal maneuvers to leverage “payoffs” from small businesses. To gain insight into this disturbing trend, I interview Marc Wasserman, an attorney who defends small businesses in lawsuits alleging non-compliance with the ADA. In this episode, we will be discussing the following:
1. The history of the ADA since its enactment in 1990, including its goals, protected classes, and definitions.
“Disability” refers to “a physical or mental impairment that substantially limits one or more major life activities of such individual . . . major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working . . . a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The ADA also protects individuals who have a record of an impairment, and those who are “regarded as having such an impairment.”
2. The ADA’s prohibits employment discrimination against qualified individuals with a disability. It further restricts the type of questioning an employer may ask an applicant about his or her disabilities.
The ADA defines a “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires . . .” (Italics added for emphasis).
3. The ADA requires that both employers and “public accommodations” (i.e. almost all businesses and facilities open to the general public) provide reasonable accommodations to individuals with disabilities, and remove barriers when doing so is readily achievable and does not cause undue hardship.
4. Public accommodations and government buildings must ensure access to all assistive walking devices, service animals, and equipment, unless doing so would be unfeasible or result in undue hardship. Further obligations include providing accessible parking spots and taking steps to communicate effectively with people who have communication-related disabilities (e.g. blindness, difficulty hearing or speaking, motor function deficit, etc.).
5. Interview with attorney Marc Wasserman regarding potential abuse of the ADA to extract settlements from small “mom and pop” businesses. As Wasserman indicates, there is significant evidence that some attorneys (and even plaintiffs) are acting in bad faith and in violation of discovery rules and litigation decorum.
Links for further reading:
National Association of the Deaf et al. v. Netflix, Inc.: The National Association of the Deaf sued Netflix, a streaming video provider, alleging that failure to provide closed captioning for the majority of its content violated the ADA. The U.S. District Court for the District of Massachusetts ruled that Netflix was in fact a “public accommodation” within the meaning of the ADA, despite the fact that it is not a building or structure.
EEOC v. Kaufman: An employer refused to permit an employee to use a magnifying glass to accommodate diabetic retinopathy, a condition that caused her significant blindness. The employer then terminated her employment. The court found that the employer discriminated against the employee on the basis of her disability.
EEOC v. Echostar Communications Corp: A blind applicant was denied employment based on her disability, even though the employer was advised that the applicant was trained in the use of sophisticated text-to-speech software that may have been available at little to no cost. The court found in favor of the plaintiff, and awarded significant punitive damages for willful violation of the ADA.
PGA Tour, Inc. v. Martin: A professional golfer with a severe degenerative circulatory condition sued the PGA Tour, arguing that its refusal to allow him to use a golf cart violated the ADA. The U.S. Supreme Court found in favor of Martin, reasoning that requiring the PGA to reasonable accommodate him would not fundamentally alter the nature of the tournament, and would not afford Martin an unfair advantage.
ADA Update: A Primer for Small Business: A great guide for small businesses, prepared by the Disability Section of the Civil Rights Division of the U.S. Department of Justice.
ADA.gov: a great resource maintained the U.S. Department of Justice. It contains texts of the laws/regulations, design standards, technical assistance materials, information regarding enforcement, and news of the most recent cases.
|Jun 20, 2014|
Medical Malpractice Litigation: Treatment on Trial
This episode covers the ins and outs of medical malpractice litigation, the main area in which I practice.* Whether you believe you are a victim of medical malpractice; a physician or other medical professional worried about being sued at some point; or just want to learn about this fascinating topic at the intersection of medicine and law, give it a listen!
In this episode, we covers the following areas, in detail:
– Statistics demonstrating the medical liability system’s impact on the economy. This includes both costs borne by insurance companies and medical co-pays and premiums incurred by patients and physicians. Many of the statistics can be found in this e-book, which contains the results of a 2009 survey undertaken by Jackson Health, a large national insurance carrier.
– The nature and impact of “defensive medicine,” a phenomenon by which doctors, in an effort to minimize exposure to lawsuits, order medically unnecessary tests, imaging, hospitalizations, procedures, and surgeries.
– Analysis of the four elements necessary to prove medical malpractice:
1. Existence of a duty of care: usually in the form of a physician-patient relationship.
2. Breach of the standard of care: The standard of care generally refers to the level of skill, education, training, and judgment that a reasonably careful medical professional would exercise under similar circumstances.
– This includes extensive discussion of the theories of liability against medical professionals and hospitals.
3. Causation: If the medical defendant breached the standard of care, the plaintiff must prove, to a reasonable degree of medical probability, that the breach caused or substantially contributed to the patient’s injuries or death.
I highly recommend Complications: A Surgeon’s Notes on an Imperfect Science, by Dr. Atul Gawande. Written in a way that is understandable to non-doctors, he does a superb job of explaining the imperfection and fallibility of medicine and of doctors; the human errors that sometimes lead to questionable judgment and ill-fated decisions; and the seemingly insurmountable challenges that surgeons face when confronting a wide range of ailments. On a somewhat disconcerting note, the book also argues that some medical outcomes (good and bad) are the result of sheer luck or chance.
* As always, the contents of this blog and podcast are not legal advice. If you have any questions about your legal rights or whether you have a case, please consult an attorney licensed in your state or locality. Medical malpractice laws vary across state lines. This article only provides a general overview of medical malpractice laws throughout the U.S.
|Jun 13, 2014|
You Have the Right to Remain Silent
Even if you have never been placed under arrest, you are probably familiar with Miranda warnings. They usually sound something like this:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during any questioning. If you cannot afford an attorney, one will be provided to you at the state’s expense.”
These warnings have become part of popular culture and are regularly depicted in television shows and movies. But what do they mean? Why do suspects need to be warned of these rights? This episode answers these questions and explores the circumstances in which the police must administer Miranda warnings; which exceptions exist to this requirement; how a defendant may invoke Miranda rights; what happens once Miranda rights are invoked; and, the consequences if the police persist in interrogation despite a defendant’s valid invocation of Miranda rights.
In this episode, we discuss:
(1) The problem of false confessions, whereby criminal defendants sometimes confess to crimes they did not commit.
(2) The origins of the right against self-incrimination in the Fifth Amendment of the U.S. Constitution.
(3) Interpretation of the terms “compelled,” “criminal case,” and “witness against himself” within the meaning of the Fifth Amendment. Particular focus is placed on the term “witness against himself” to understand what circumstances entitle a defendant to invoke the Fifth Amendment to avoid self-incrimination.
(4) The U.S. Supreme Court has held that a confession obtained through physical or psychological coercion (or the threat of coercion) violates the Fifth Amendment. Cases discussed:
(5) Facts of the infamous decision in Miranda v. Arizona (1966) 384 U.S. 436, where the U.S. Supreme Court held that custodial interrogation by police is inherently coercive; therefore, the police must ensure certain procedural safeguards to protect a suspect’s rights, which includes reading the suspect a set of warnings.
(6) U.S. Supreme Court cases interpreting the meaning of “custodial interrogation.” Cases discussed:
(7) Statements obtained by an undercover agent or jailhouse informant do not violate the right against self incrimination; however, depending on the timing, may violate the right to counsel. Cases discussed:
(8) To properly invoke the right against self-incrimination, a defendant must clearly and unambiguously state his intention to do so, or stop speaking altogether. The same applies to invoking the right to have counsel present. Ambiguous statements that do not clearly invoke these rights may permit the police to continue interrogating the defendant.
(9) Once a defendant has unambiguously invoked his right against self-incrimination, all interrogation must stop; however, depending on the circumstances, the police may re-initiate interrogation at a later point. The relevant inquiry for subsequent interrogation is is articulated in Missouri v. Seibert (below). In contrast, if the defendant invokes the right to counsel, all interrogation must stop, and can only be resumed if the defendant independently re-initiatesconversation. Cases discussed:
(10) There are exceptions to the Miranda rule. The police do not need to warn a suspect of his Miranda rights during routine booking questioning, traffic stops, and when questioning is necessary to protect an imminent threat to the public (the public safety exception). Furthermore, a prosecutor may comment at trial on a defendant’s pre-Miranda statements if the defendant subsequently offers inconsistent testimony.
The Boston Marathon bomber prosecution
(11) In 1968, Congress attempted to “overrule” Miranda v. Arizona by passing 18 U.S.C. § 3501, which directed federal trial judges to admit statements given voluntarily, regardless of whether Miranda warnings were given. Over three decades later, in Dickerson v. U.S. (2000) 530 U.S. 428, the U.S. Supreme Court overruled 18 U.S.C. § 3501, holding that Miranda’s protections arose out of the Fifth Amendment of the U.S. Constitution, and therefore could not be abolished or limited by congressional legislation.
|Jun 03, 2014|
Introduction the The Legal Seagull Podcast
Hey everyone, welcome to The Legal Seagull Podcast!
In this introductory episode let’s you know about the format and subject matter of the Legal Seagull Podcast. I also introduce myself and give a brief background.
The Legal Seagull Podcast is designed for both lawyers and non-lawyers- so you don’t need any particular legal knowledge to find it relevant, interesting, and (hopefully) entertaining! We will cover a wide array of litigation issues, including: juries, lawsuits, the ins and outs of a civil lawsuit, individual and corporate liability, intellectual property, tort, and property law.
We will also delve into criminal law, including individuals’ constitutional rights. Among these rights, we will discuss what limits the Constitution imposes on law enforcement: what are they allowed to search, what evidence can be used against an individual in a criminal case, and what powers and limits apply to the state when it comes to arresting, charging, prosecuting, and ultimately sentencing criminal defendants.
In short, we’re going to have a blast discussing litigation, the law, and most importantly, how it all affects you!
Until next time... stay legal.
|Jun 03, 2014|