July 8, 2014
Yankees fan caught sleeping on TV sues ESPN, MLB for $10 million

A Yankees fan who was caught sleeping during a broadcast is suing MLB and ESPN because sportcasters made fun of him on the air.  Aside from the outrageous damages claim, I thought this was an interesting snippet:

According to the report, Rector’s suit was riddled with typos and improper grammar, claiming the broadcasters insinuated that he “is a fatty cow that need two seats at a time” and “is a confused individual that neither understands nor knows anything about history or the meaning of rivalry between Red Sox and Yankees.”

I was surprised to see the bolded sentence and then learn from the face of the complaint that he’s represented by counsel.  Rule number one of private practice: don’t turn in legal documents “riddled with typos and improper grammar.”  These complaints are public record, and news organizations often have dedicated reporters to covering the courthouse.  That’s one heck of a black eye for the attorney.  Oof.

June 20, 2014
Want to run for political office? Don't work as a public defender first - ABA Journal

From the article:

An interesting tidbit about Hillary Clinton’s background you may not know:

Money quote:

If you ever wondered how mass incarceration got where it is today, you can thank the stigma behind working as a public defender.  ”Criminals” and “crime” are an easy way to stoke fear among the electorate.  Demonizing criminals is good politics.  Politicians convince people that criminals are an evil “other” out to harm you and your family.  You, on the other hand, are no criminal.  You’re a good, law-abiding citizen. Despite the fact that you’ve probably committed numerous federal felonies, violate traffic laws almost every day, and maybe you’ve even pirated a few songs or movies in your day—also a federal felony.

In reality, the only difference between a criminal and a law-abiding citizen is that the police decided to arrest the criminal.  But reality is not good for politics.  Making people resent public defenders because they “defend criminals,” however?  That’s good politics.  Unfortunately, it’s also terrible for society.

June 4, 2014

It is both my best and worst quality as a lawyer that this is my reaction literally every time I see a Government motion filled with bullshit legal arguments.

May 8, 2014

moonbehindclouds said: Have you heard about the civil case in the process right now, of a man being sued by Medialink, over a comment he made on Amazon over one of the company's routers that displeased him?

I have.  I think Mike Masnick at Techdirt  summed this one up:

It’s an age-old story. Guy buys a router. Router sucks. Guy writes negative 1-star review on Amazon. Company threatens to sue him for defamation. Because it’s not like every otherattempt to sue over negative reviews ends badly

It is true that Reddit user trevely’s original review did make some strong claims, which clearly, the router maker, Medialink, objected to. Trevely has since edited his review to clarify which parts were opinion and which were clear facts. Medialink’s main complaints were that the original review claimed that many of the positive reviews of their router were fake, and that the router was just a rebranded version of someone else’s router. Still, the original review was no worse than many standard negative reviews, and given how many other reviews Medialink had, you’d think that Medialink would just let this go, rather than call in the lawyers — and suddenly get so much more attention to the negative review. Oh, and more attention to the positive reviews… and their legitimacy. 

Whether or not they are actually fake, some Reddit users have certainly spotted some fairly questionable 5-star reviews, like the one guy who seems to think that the router is actually a set of car headlight bulbs. And, others have long suspected fake reviews on the product, so it’s not like trevely just made this up out of nowhere. 

As for the rebranding claim, well, as the original review noted, that seems to be confirmed by a filing with the FCC, in which Medialink directly says that the equipment is “electrically identical” to the Tenda router that trevely was pointing to. Oops. 

Here’s the deal: in order to be liable for…ahem…libel…you need to prove:

  • The defendant published a provably false and defamatory statement concerning the plaintiff.
  • The defendant acted with a sufficiently guilty state of mind (negligence in some cases, reckless disregard or purposefulness in others).
  • The defendant did not have a legal privilege to publish the statement.
  • Damages (unless state law allows for libel per se, which provides that the Plaintiff doesn’t have to show damages in certain cases)

To “publish” means to disclose to a third party.  The state of mind required varies with the circumstances.  In the case of public figures, courts require “actual malice,” i.e. actual knowledge of falsity or reckless disregard for whether the statement was true or not.

I did notice something funny about the case right out of the gate.  Here’s the first page of the letter that Medialink’s lawyer sent to the reviewer:

image

The lawyers state that the reviewer made “defamatory, libelous and slanderous statements about Mediabridge and its Medialink brand of Wireless Routers.”  A statement cannot be both slanderous and libelous.  Slander refers to spoken words, while libel refers to written words.  Since the disputed statements are contained in a written review, the statements can only be libelous.  The lawyers made fools of themselves right out of the gate with this one.

As far as whether the lawsuit goes anywhere, it’s hard to say without deeper knowledge of the facts of the case.  But I will say that it always makes me laugh when lawyers write letters like this.  The more bluster you put in your legal writing, the more vulnerable you make yourself to an epic smackdown from someone who actually knows what they’re talking about.

April 30, 2014
‘Verbatim: What Is a Photocopier?’

If you want to know what litigators deal with on a regular basis, this video will give you a good idea.

April 27, 2014
"Those of us who represent parents every day in child welfare proceedings know that many people who use drugs and alcohol — and even those who suffer from drug or alcohol dependence — often remain fit to care for a child. This is true regardless of race or class. We have seen over and over again that it is often far more detrimental to disrupt crucial early attachment or to traumatize children by taking them from their homes than support parents while their children are home. Foster care is a last resort that should be used only when alcohol or drug dependency results in mistreatment of the child, or in a failure to provide the ordinary care required for all children."

Emma S. Ketteringham, Managing Attorney for the Bronx Defenders’ Family Defense Unit.

April 17, 2014
Exclusive: Does Cliven Bundy Have Something Called “Prescriptive Rights”, Why The BLM May Be Afraid To Go To Court

So this is probably the sanest take on the Cliven Bundy/BLM conflict that I’ve seen so far.  From the article:

what exactly are prescriptive rights? Prescriptive right to property is an easement that gives some one the right to use land owned by someone else for a particular purpose. An example is using a path through Party A’s land to get to your land, a prescriptive easement is allowed which gives the user the right to get to his land through A’s property.

In most states, if a trespass or use of land occurs regularly for at least 5 years without the “owner” of the land taking legal action, prescriptive rights come into play. Because Bundy stopped paying his grazing fees to the BLM in 1993 but continued to use the land for over 20 years, it is possible he now has prescriptive rights to the land. That might explain why the BLM has not taken this issue to court and never bothered to file a lien against the cattle.

Granted, there have been court actions over the years. In 1998 a federal judge issued a permanent injunction against Bundy, ordering him to remove his cattle from the federal lands. He lost an appeal to the San Francisco 9th Circuit Court of Appeals. Yet, the “trespass cattle” remained on the BLM land. In fact, it took until August of 2013 for a court order to be issued saying Bundy had 45 days to remove his cattle from federal land. 15 years went by from the time of the last court case over the cattle until the BLM attempted to remove the livestock.

Of course, Bundy has not made the claim that he will not pay the fees, he simply says he will not pay those fees to the BLM because he doesn’t recognize federal authority over the land. Bundy has said that in the past, that he would pay fees to Clarke County, Nevada, though Clarke County has refused to accept them. The BLM has insisted that Bundy owes $1.1 million dollars in grazing fees for his trespass cattle.

I haven’t seen the court documents, so I can’t make any definitive conclusions about Bundy’s legal position.  But if I was to judge based on this summary of the facts alone, I think that legally speaking, Cliven is boned.  I don’t see how a claim for a prescriptive easement would defeat a permanent injunction.  Since it was permanent, that means he continued to stand in violation of it in August 2013, when the court issued a new order for Bundy to vacate his cattle from the land.  Walter Olson, a conservative lawyer who runs Overlawyered, seems to agree:

It has been objected that ownership of vast tracts of the American West by the federal Bureau of Land Management is a very bad idea, might have appalled many Framers and early legislators, and has been advanced into our own era through aggressive policies to curtail the participation of private users. I’m having trouble seeing the relevance of all this, however, to Bundy’s supposed right to defy multiple court orders. The federal government should not be in many different lines of business that it currently is in, but that doesn’t create a right of individual citizens to occupy federal installations for personal economic benefit despite court orders directed against them to the contrary.

John Hinderaker, who is sympathetic to Bundy, nonetheless makes a similar point:

[I]t must be admitted that legally, Bundy doesn’t have a leg to stand on. The Bureau of Land Management has been charging him grazing fees since the early 1990s, which he has refused to pay. Further, BLM has issued orders limiting the area on which Bundy’s cows can graze and the number that can graze, and Bundy has ignored those directives. As a result, BLM has sued Bundy twice in federal court, and won both cases. In the second, more recent action, Bundy’s defense is that the federal government doesn’t own the land in question and therefore has no authority to regulate grazing. That simply isn’t right; the land, like most of Nevada, is federally owned. Bundy is representing himself, of necessity: no lawyer could make that argument.

Cliven Bundy is in criminal contempt of multiple court orders.  That means that even if he pursues a claim for a prescriptive easement, he’d probably lose due to unclean hands.

Another issue is that, as Ben Swann notes above, Bundy’s claim isn’t that he doesn’t owe the grazing fees, but simply that he doesn’t owe them to the federal government.  He’ll pay to the county, but not the BLM.  Swann suggests that this might be a reasonable resolution:

When Devlin reached out to the BLM, he suggested that the federal agency just allow Bundy to pay the fees to the county rather than continuing with these aggressive tactics to confiscate his cattle.

“Why don’t you just let him pay them there (Clarke County)? I got a call back from the liaison saying ‘Yes, pursue it.’”Devlin reached out to contacts in Nevada to get that process moving forward. If that were to happen, Clarke County could collect the grazing fees and if it desired to do so could hand those fees over to the BLM.

But there’s a couple problems with this.  First, the fact that Bundy thinks he owes money to the county rather than the federal government places him in a tough legal position.  In court, this would function as an admission that he wasn’t the true owner of the land, which would then mean that only issue for the court to decide is whom Bundy’s grazing fees were owed to.  Since the Ninth Circuit has already decided against Bundy twice, I imagine a new court would also resolve this decision in favor of the BLM.

Second, it seems unlikely that Bundy would even agree to this arrangement if he knew the County was simply acting as a middle man for the BLM.  Bundy’s claim is that the federal government doesn’t own the land, and hence the BLM has no jurisdiction.  If he knew the county was just funneling his grazing fees to the BLM, that would seem to defeat the purpose of Bundy’s resistance to paying grazing fees to the BLM.

With all that being said, it seems like the BLM really wants to avoid an armed conflict with Bundy and his supporters.  Swann notes that the BLM is now considering placing a lien on the cattle.  This probably wouldn’t do anything to change Bundy’s position in the near term, but it would make BLM a creditor of Bundy’s estate when he dies, meaning that they could ask a Nevada probate court to order the unpaid fees to be paid out of Bundy’s probate estate.  That would probably be the most peaceful resolution to this issue, since Bundy’s primary concern seems to be with immediate possession of the land, and the BLM simply wants to obtain its grazing fees.

April 11, 2014
When Judges Attack: Prosecutorial Smackdown Edition

An Assistant District Attorney in the Bronx was recently destroyed in open court by a Bronx Criminal Court Judge.  The judge was livid about the D.A.’s failure to turn over exculpatory evidence to the Defense during a rape trial.  The Defendant spent eight months in prison awaiting trial, and the evidence wasn’t disclosed until the end of the trial, after closing arguments.  The judge took the rare step of barring the prosecutor from ever appearing in his courtroom again.  The transcript of the hearing is epic, to say the least:

The Court: I think I’ve heard enough. You can stay standing. 

I was admitted to the bar in April of 1987, and I was, at the time, an Assistant District Attorney in the Bronx DA’s Office.  I’ve always been very proud of that association, until today.  I also served as a defense lawyer and 18B counsel.  I’ve tried homicides; I have tried child molestation cases; and I have tried drug sale cases.

I have now been on this bench nine years and three months.  In all that time, as a prosecutor, as a defense lawyer, as judge, I have never once seen a Brady violation as egregious as this.

To my mind, this is an utter and complete disgrace, not just for you, but for your office in general.  Disgrace.

The excuse you offer, passing the file back and forth, no one looking and no one knowing what anything is, saddens me on one level and makes me sick on another.

For my own peace of mind, I absolutely refuse to believe that you did this on purpose.  However, it is gross negligence on your part to have not found this information, and turned it over to Defense, and for your supervisor to find it and turn it over right after Defense summations.  I emphasize those words: Gross negligence.

I recall the Defense asking before the trial started for any notes that the People had in their possession, and you blithely said, “No, we don’t have any notes.”  It turned out, unfortunately, to be a lie.  Your actions bring disgrace to both your office and to yourself.

But what really concerns me more than anything else is: Where is the justice for your complaining witness?  Where is her justice?  She had the right to have this case heard by a jury and have that jury decide whether or not they believed her allegations.  She’s lost her chance at that justice due to your conduct.

What about [the Defendant’s] justice?  The Defendant had a right to have a jury decide whether or not they believed those allegations.  Where is his justice waiting for his trial?  You have failed on so many levels, on so many levels.

Here are your sanctions:  You’re going to leave this room, and you’re never going to come back.  You can’t appear before me anymore.  I’ll tell you why, because I cannot trust anything you say or do.  I can’t believe you.  I can’t believe your credibility anymore.  The only thing a lawyer has has to offer is their integrity and their credibility, and when you’ve lost that, there is no purpose in your appearing before this Court.

Step out.

March 13, 2014
"

There is a long and noble history of lawyers going against popular opinion in this country. John Adams successfully defended British soldiers accused of killing colonists. His son effectively represented the Amistad case. James Horton, the presiding judge in the Scottsboro case, is remembered today as heroic but at the time lost his job as a judge and couldn’t maintain his law practice due to his affiliation with the case.

[…] The campaign to discredit [Debo Adegbile] is reminiscent of criticism leveled at attorneys representing or advocating on behalf of Guantánamo detainees. In 2010 they were vilified and labeled “unpatriotic” in several media campaigns. Responding to an inquiry from Senator Charles Grassley (R-IA), the Department of Justice identified nine of its attorneys as involved in defense work. As a result, these lawyers, along with several other non-government attorneys representing detainees, found their ethics and loyalties under attack for pro-bono work they conducted as a matter of conscience and professional responsibility.

Bar associations and legal organizations defended the Guantánamo lawyers in 2010, speaking out publicly against criticisms of their service on behalf of the detainees. We now object to attempts to vilify attorneys such as Debo Adegbile, and the honorable work of the NAACP Legal Defense Fund, as antithetical to the fundamental rights enshrined in our constitutional system. The Legal Defense Fund’s willingness to represent high-profile, and to some, unpopular, defendants demonstrates a respect for the rule of law. Rather than punish principled legal advocacy, as an elected official who took an oath to uphold and defend the Constitution of the United States, [Congress] should commend it as integral to our democracy.

"

A Letter sent by the National Lawyer’s Guild (and signed by numerous other Legal Organizations) to U.S. senators who voted not to confirm Debo Adegbile as head of the DOJ Civil Rights Division.  Adegbile is an experienced attorney who represented Mumia Abu-Jamal in the appellate courts.  Many senators shied away from Adegbile as a result of a smear campaign against Adegbile led by the Fraternal Order of Police.  As the letter points out, by denying Adegbile’s nomination, the U.S. Senate is sending the message that “lawyers who fulfill their mission of upholding the U.S. Constitution through representing [unpopular] clients—in this case former death row inmate Mumia Abu-Jamal—should be disqualified from serving in high levels of the government.”

March 3, 2014
"The Supreme Court cannot allow a rule that forces capital defense attorneys to become agents of the state—and consultants about which lethal injection procedures are better than others—to the detriment of their clients."

Andrew Cohen, discussing a recent 8th Circuit decision that forces defense attorneys to propose “alternative” executions for clients when they challenge an existing execution method as Cruel & Unusual.  He adds:

The best answer here, naturally, is the simplest one. Make the injection process more transparent, and give attorneys access to the information they seek, so that they can challenge state action based upon facts and evidence and not merely by allegation. 

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