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How to Get Sued

Quote of the Day - Jails and prisons are the complement of schools; so many less as you have of the latter, so many more must you have of the former. - Horace Mann
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Convicted Killer of Seven Wants Playstation in Jail Cell

Sues to Get Toy; You Be the Judge

You may never have heard of Julian Knight, but that's likely because not only is he down under, but he's also under sentence.  Seven of them.  Life sentences, that is.  Knight (I can't bring myself to put a "Mr." before his name) was an army cadet and in 1987, he clambered up a billboard overlooking Hoddle Street, a very busy street in Melbourne. 

That's Melbourne, Australia, in case you haven't been following along.  As a disclaimer, I am not licensed to practice law in Australia, but the situation this case raises is one we face in the states where I am licensed to practice law.  Plus, I'm going to bet that even if you don't own a license to practice law, you are still going to have an opinion on this one.

Read on.

As he climbed up the billboard, Knight took with him two rifles and a shotgun.  As you've likely guessed, he then fired shots at numerous passing cars (as well as a police helicopter).  He killed seven people and wounded 19 - thus the seven life sentences.  Since the Hoddle Street massacre (as it became known) was in 1987, you're likely now asking. "why am I just hearing about this now?"

That's because Knight now - some 26 years later - wants to be able to play on the computer while he's in jail.  He wants a playstation.  He also wants the computer so he can become a better jailhouse lawyer so he can fight his way out of jail legally.  He's already been labeled as a vexatious litigant according to news sources, which means he pretty well understands how to file lawsuits from the jailhouse.  He's apparently not very good at it, however, since he's still in jail.  That's why he needs to conduct legal research on the computer. 

And play.  After conducting legal research, I'm guessing that one of his arguments is that he needs to relax and rest your mind.  I can attest to that need, but I'm just not sure that Australia is all that willing to plug a computer into his jail cell and attach a playstation to it just so Knight can relax after a hard day on the computer

By spending more time on the computer.  Although that argument is lost on me, Knight's request isn't.  The jailers turned down his request, so now he's suing to get a playstation in his jail cell. 

It raises the question of what constitutes punishment, retribution, rehabilitation and deterrance.  Those are genreally considered the four main goals of our criminal justice system.  As a society, we've also agreed with each other to avoid cruel and unusual punishment.

Knight claims that there are other prisoners in his jail who have computers and playstations.  Just not him, and he claims that disparate treatment is unfair.  I suspect that if we were now able to ask those seven people who Knight killed whether it was fair that they were killed, they'd say no.  But those answers don't seem to deter Knight from his request, if that thought even crossed his mind before he asked.

Perhaps the jury that considers this question - if it ever got to a jury - should be made up of the 19 people who were wounded by Knight but survived, and see what they'd rule.

My guess is that they'd say no.  How would you rule?

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, May 14, 2013 at 10:03 Comments Closed (0) |
 
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The Big Print Giveth and the Small Print Taketh Away

In Other Words, Read What You Sign First

People never cease to amaze me. Let's say you're a computer manufacturer in China, and you agree to sell, oh, say $2 million in computer parts to a computer company in the United States. Logistically, you've got one big problem on your hands. How do you get all of those parts from China to the US?

They're too heavy for a plane and trucks don't float, so you choose a boat. Well, actually a freighter. You know, those great big boats with lots of containers to hold your computer parts.

So here's the deal. The manufacturer signs a contract with a shipping company, and then sets off to make the parts. A year later, the parts are finished and loaded on the boat. Er, freighter.

The shipping company, however, doesn't work with contracts, they work with Bills of Lading. So, the shipping company issues two bills of lading, one for each container. Those Bills of Lading, however, contain a limitation that prevents the manufacturer from suing them more than a year after the parts are delivered. That limitation was not in the original contract that the manufacturer and shipper signed.

Well, as things sometimes happen, the deal went awry. The original contract said that the shipper was not to release the parts to the US computer company without the manufacturer's permission.

As you have guessed, the shipper released the $2 million of computer parts to the US computer company without the manufacturer's permission. Unfortunately for the manufacturer, the US computer company filed for bankruptcy shortly after receiving the parts from the shipper, and never paid the manufacturer the $2 million.

How this next part happened eludes me, but the manufacturer DIDN'T NOTICE that it hadn't been paid the $2 million FOR MORE THAN A YEAR. Must be nice to have that much money that you don't miss $2 million for a year. Wow.

When the manufacturer finally woke up realized that the money was missing and the computer company had filed bankruptcy, it called the shipper and told the shipper to return the computer parts since it had never given permission to the shipper to release the parts to the computer company.

The shipper fessed up and admitted that it had improperly released the computer parts without permission, but relying on the one-year limitation in its Bills of Lading, refused to pay the manufacturer. Not surprisingly, the manufacturer sued the shipper.

Guess who wins here?

That's right....the shipper. The manufacturer tried to rely solely on the original contract, but the court said that the Bills of Lading constituted a subsequent and valid contract, and the one-year limitation against suit was enforced.

Just goes to show you. Read the small print on the back. That's where the one-year limitation was printed.

Here's the actual court opinion.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, April 26, 2013 at 15:42 Comments Closed (0) |
 
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How Congress Takes A Congressional Junket Without Letting Anyone Know

Members of Congress and their staffers who travel at the expense of private organizations must follow a long list of legal restrictions and requirements.  However, there is a little known exemption that allows the same federal employees to travel with virtually no accountability and very little transparency.  Please join me and my fellow Lawyer2Lawyer co-host and attorney, Bob Ambrogi, as we welome ProPublica.org reporter Justin Elliott and Washington University Law Professor Kathleen Clark to examine the ethics, legalities and secrecy of these Congressional trips abroad.

Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, April 19, 2012 at 21:08 Comments Closed (0) |
 
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Private Parking Lot Owners Cannot Issue Citations With Fines

Our somewhat new attorney general, Kamala Harris, has give us this Christmas present:  a private parking lot owner can't issue a ticket with a monetary fine.  Even if the private parking lot owner towed your car (something they are allowed to do if the appropriate signs are posted), that owner cannot require you to pay a fine in order to get your car out of hock with the towing company.  If you would like to read the opinion, it should be uploaded here on the Attorney General's website (at the time of this article, Opinion 07-804, filed December 22, 2011, hadn't been uploaded).

Apparently, issuing tickets on private property has become the latest revenue-generating idea.  If police can issue tickets to raise revenue for towns and cities, then .... whoops!  DId I just use my outside voice?  That, along with my other favorite:  "Why aren't the cops out catching real criminals?"  That one always seems to me to miss the point of the ticket. 

But back to our regularly scheduled program:  the parking lot ticket.  If you think about it, the ruling makes a lot of sense.  The California Legislature has already authorized private parking lot owners to tow cars, so if they have that drastic remedy, there is no reason to also "pile on" with more fines. 

And for a bonus round, the Attorney General has also given us this gem:  a parking lot owner can't "boot" a car in the parking lot becuase it constitutes vehicle tampering.  Like the opinion before this one, it is only available on a private search engine, but the citation is:  87 Ops.Cal.Atty.Gen. 114.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, December 23, 2011 at 14:56 Comments Closed (0) |
 
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Four Young Men Building Ice Rink Nabbed By Cops

Boys.

That's what my fiance' would say.  And she would say it with that laughable sound of disgust that we, as men, know all too well. 

So, you have to read the headline with that sound in mind.  Go ahead:  go back up there and read it again.

Now listen:  "Boys."  Got it now?  Alright.  With that, we can get started. 

Think about it.  In Chicago this time of year, it's below freezing.  If you missed that class in high school physics, water freezes below 32 degrees.  Enough to form ice.  Plus, those young men (ok, "Boys") were also big hockey fans.  You know, the kind that skate on ice and slap a black puck into a net on the other side of the ice rink.  So, it didn't take much to put 2 and 2 together and get an ice rink.

Four college age guys (ok, "Boys") got one of their Dads to underwrite their efforts to build an ice skating rink out in the backyard.  Just like the one in Rockafeller Center, but, well, without the tree, the music, the decorations and all those skaters.  Well, perhaps not at all like Rockafeller Center, except for the ice rink part.  So, you and your bros (ok, "Boys") go to the local lumber store and build yourselves an ice rink. A regulation-sized ice rink, complete with a penalty box (make your own joke here, this one's just too easy).

The only problem with the gents' (ok, "Boys")  plan revolves around the garden hose.  Trying to fill up a 91'x43' rink with a garden hose is like trying to drink a pond dry with a straw.  It just takes too long for four impatient players (ok, "Boys") to get on the ice.

Like most enterprising builders, they looked around for a solution.  They spotted a fire hydrant at a next-door school, and borrowed a fire hose from a buddy (not a "Boy") who worked at a local fire department. 

Viola', problem solved.  The ice rink filled up quickly, but not quickly enough that a school janitor spotted the fire hose attached to the fire hydrant, and heard the water running in the hose.  Like a good citizen janitor, he called the cops.

Using their honed detection skills, the cops followed the fire hose to the ice rink and nabbed the Boys (yes, at this point, they're now full-fledged Boys).  Read the story for the details, but suffice it to say that the four Boys have agreed to split the court court costs and the expected $130.00 fine for the cost of the school's water.

Next year, I'll bet that these young men (not Boys any more) will wait out the time it takes to fill the ice rink using the garden hose.  Just a guess.

 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, December 18, 2011 at 16:51 Comments Closed (0) |
 
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CEO, CFO And Manager Held Individually Liable For Employee Unpaid Wages Upon Corporation's Bankruptcy

If your company files bankruptcy or dissolves and in the process the company fails to pay its employees their wages, vacation and sick time, the Ninth Circuit says you - as the Chief Executive Officer, the Chief Financial Officer and the labor manager - can be held individually liable to pay those back wages.  Plus penalties.

Read that sentence again and don't skip over the word "individually."  Yep, you got that right.  Ouch.

In Boucher v. Shaw, the Ninth Circuit upheld individual liability for supervisors under the federal Fair Labor Standards Act despite two striking facts:  (1)  they were not individually liable under Nevada wage and hour laws; and, (2) the corporate employer (the Castaways Hotel and Casino) was in bankruptcy court in liquidation proceedings. 

In these conomic times, this case is an important reminder that executives are taking the risk of individual liability under the FLSA by failing to ensure that employees are paid upon dissolution or bankruptcy of a corporate employer.  This ruling applies in California since it's out of our Ninth Circuit and the law enforced by the court is a federal, not state, law.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, July 28, 2009 at 08:26 Comments Closed (0) |
 
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Driving Drunk, Crashing And Calling 911 For Your Injuries: All On A Bar Stool

Go ahead.  Read that headline again.  That's right, it's called juxtaposition with an illogical conclusion.  Before we get to the rest of the punchline here, let's just look at that carefully crafted silliness we call life.

Here's the setup.  Kile Wygle must have had some spare parts for a go-kart, a kitchen bar stool, a lot of time on his hands and presumably a lot of beer in his refrigerator.  And at least four wheels and a working engine.  Let's take this piece by piece. 

First there's the four wheels, spare parts for a go kart and the kitchen stool.  Then swirl in some extra time, a dash of creativity - notice I said a dash here.  That means a small amount.  Oh yes, and let's not forget the frame for this mechanized wonder and some welding tools.  Put all of that together and you get a mechanized go-kart with a bar stool that can hit 38 miles an hour on the open flats.  Not bad for a 28-year old aspiring mechanic.

Makes the trip to the refrigerator for some beer all that much more interesting.

Imagine.  You're watching the Monday night football game and your brew is empty.  You don't have to say to your buddy, "Hey dude, bring me back a beer with the chips and cheese in a can."  You can just shift your bar stool into high gear and get it yourself, all from the comfort of your own bar stool without even getting up.  I can hear it now, "Man, you should patent that thing.  Everybody's going to want one."

Right.  Not after the rest of the story.

Kile's Monday night football game went on a little too long.  Well, at least long enough to go back and forth to the kitchen for 15 beers, which - yep, you guessed it - caused Kile to run out of beer.  No problem.  He's got a go-kart bar stool that goes 38 miles an hour.

Just a quick trip to the 7-11 at the end of the block and problem solved - if it hadn't been for that little thing called a curb.  At 38 miles an hour.   Kile ends up no longer on the bar stool / go-kart speedster but instead with some pretty serious road rash.  No problem, though.  He's got a cell phone.  A quick little call to 911 and he'll be good as new by morning.

When the cops arrive, they see the bar stool / go-kart, Kile on the ground with injuries and ask the inevitable questions we're all dying to ask:  how and why?  Being the upstanding citizen that he is, Kile responds honestly:  15 beers and a go-kart bar stool that does 38 miles an hour.

Kile ends up charged with a DUI and driving - if you can call it that - with a suspended license.

Here's the real story, which is shy on a few details I presumed likely to be the case and added to connect the missing dots.  Call it poetic license.  Kile certainly would.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, March 30, 2009 at 19:29 Comments Closed (0) |
 
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The Easiest Way To Make $10,000+++ Every 30 Days

For just a few hours a week in your spare time, you too can make money by searching local real estate records, locate holders of privately held mortgages, or "paper," and then either purchase the paper or broker deals with companies interested in purchasing the paper.  You can read John Stefanchick's book Wealth Without Boundaries and buy his video and audio tapes, course materials, attend his workshops and even pay his coaches to help you when you want to figure out how to make even more money.

Or you could buy some swamp land down in Florida, invest in subprime mortgages or send money to Nigeria.

The Federal Trade Commission didn't believe Mr. Stefanchik's claims and investigated.  The FTC found he defrauded consumers - to the tune of some $17 million - and sued him.  The Court granted the FTC's motion for summary judgment and an award for the $17M, which Mr. Stefanchik promptly appealed - as his own attorney - claiming the FTC didn't prepare its survey data correctly.  Mr. Stefanchik failed to present evidence that any consumer actually made $10K a month by working just five to ten hours a week.

The FTC, on the other hand, did present evidence from consumers that they had been unable to make the amounts of money claimed by Mr. Stefanchik and from coaches who likewise said consumers couldn't make the money as promised. 

The FTC also submitted evidence that Mr. Stefanchik sold $17 million in books, DVDs, coaching services and audio tapes in just a little over two years. Not surprisingly, the Ninth Circuit upheld the court's decision and monetary award

Maybe the FTC missed something here.  You can still buy another one of Stefanchik's books about a similar-sounding method:  The Stefanchik Method:  Earn $10,000 A Month For The Rest Of Your Life In Your Spare Time

Who needs Bernie Madoff when there's these get-rich-quick schemes available?

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, March 26, 2009 at 22:54 Comments Closed (0) |
 
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Hair Spray For ... Lawns?

My hairdresser knows for sure:  she tells me I am lucky to sport a full head of hair even though I complain that some of it is gray.  My younger brother Todd, on the other hand, inheirited my grandfather's hair:  only on the sides and back, none on the top. Chrome dome, in other words.  Now don't write in and comment if you're follically (is that a word?) challenged.  It's not my fault I'm not bald, and it's not your fault that you are.

There is, after all, hair spray for men, as you may know from commercials or from watching The Fabulous Baker BoysRonco is not going to let you down.

But the current economic and subprime mortgage crisis is letting down California lawns.  In fact, statistics show that there are more bald spots in California than in any other state.  It's a combination of the crisis and the heat.  You see we have to water our lawns here in order for the grass to grow.

You thought I was still talking about hair?  Catch up here bucko, it's a long, fly ball and the center fielder is still going back.  And it's not even summer yet. 

In Perris, California - the middle of the Inland Empire - it's hot.  To top it off, those whose houses have been foreclosed or are trying to conduct a short sale aren't watering their lawns either.  The net result?  Brown lawns.

What's a troubled city like Perris to do?

Rush to the rescue with $2 million - yes, you read that right - two million dollars - to spray paint those brown lawns green. Gives a whole new meaning to graffitti by spray paint.  Just think of all those kids this program will keep off the streets by moving them to the lawns of Perris.

Two million dollars to spray paint lawns?  And it only lasts six months?  Why not buy astroturf and make it permanent?  The town fathers and mothers say they're stabilizing the neighborhoods.

I just hope none of my bailout money makes it to Perris. 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, March 22, 2009 at 21:11 Comments Closed (0) |
 
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MIPTC's Writer Moves WLF Firm To Sedgwick, Detert, Moran & Arnold, LLP

You may have noticed some changes going on around here.  We've taken away the burgundy background and added in its place a soft taupe and slate blue and you'll soon see changes in the branding, removing WLF | The Williams Lindberg Law Firm, PC from the site.  We're excited to announce that our firm has been acquired by Sedgwick, Detert, Moran & Arnold, LLP.  I'm housed in SDMA's Irvine office, just a hop, skip and a jump away from Newport Beach. 

While WLF has ended its operations, MIPTC will continue as a blog independent of SDMA, but still written by me.  Sedgwick's webmasters have beed kind enough to make the color changes to more closely match the SDMA site colors, although my blog will not be branded with SDMA's name.  Plus, we've added in a new disclaimer to make sure you understand that while I may be a partner at Sedgwick, what I say here is not firm policy.  So if I do anything to offend you, it's not their fault.  It's mine. 

With that out of the way, MITPC will return to its regular format of daily news and legal observations.  As you can imagine, I've been just a bit busy with the transition.  So if you get the chance, give me a call at the new firm at 949-852-8200 or send me an email at jcraig.williams - at - sdma.com (just replace the - at - with the @ symbol).  I'd love to hear from you about what you think of our new look.

You'll still see my weekly podcast Lawyer2Lawyer on the site and we're continuing our companion blogs, A Criminal Waste of Space and Sharks in the Water.  Just about everthing else will remain the same, especially the dry satirical take on things.  Plus, you'll soon see my new book, Bad Decisions?  10 Famous Cases That Went Wrong, published by Kaplan Publishing this fall.

Stay tuned. Exciting things are coming, and thanks for your continued support.  Stay in touch.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, March 07, 2009 at 16:42 Comments Closed (0) |
 
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A Legal Challenge To God At President Obama's Inauguration

Reverend Michael Newdow, an atheist and inexplicably a minister (isn't that an oxymoron?) of the church of First Atheist Church of True Science (FACTS), wants church and state separated.  He's the one who sued over the Pledge of Allegiance but lost

So, to stop Supreme Court Chief Justice John Roberts from prompting President-elect Barack Obama with the words, "So help me God" at the end of his Oath of Office, Rev. Newdow sued. 

Here's a few paragraphs from his Complaint [footnotes omitted] so you can have the full context:

64. Yet despite all of the foregoing [a treatise on the separation of church and state and Supreme Court pronouncements], Defendant Roberts - who, as Chief Justice of the United States, embodies the rule of law and the devotion of our government to the United States Constitution more than any other individual - will (with no authority whatsoever) alter the text of that document to infuse the inaugural ceremony with purely religious dogma.

64. Furthermore, the remaining Defendants will bring to the inauguration of the President - the grandest ceremony in our national existence - two chaplains to extol the glory of God. This is the case even though the Supreme Court has specifically pronounced that 'the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.' "

The Complaint continues:

"83. Under the Establishment Clause, Plaintiffs have a right to view their government in action without being forced to confront official endorsements of religious dogma with which they disagree. This is especially the case when that dogma stigmatizes them in the process.

84. Being forced to confront such religious dogma as the price to pay for observing a governmental ceremony is a substantial burden upon Plaintiffs' rights of Free Exercise as well. One cannot freely live as an adherent to a religious ideology when the government uses its 'power, prestige and financial support' to impose a contrary religious doctrine while such individuals are observing its ceremonies."

So, Rev. Newdow wants Chief Justice Roberts to follow the Constitution:

"101. The oath of office for the President of the United States is specified in the Constitution's Article II, Section 1. In its entirety, it reads: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'

102. It is to be noted that the words, 'so help me God' are not included in this oath.

103. That 'so help me God' was added to the presidential oath by George Washington is a myth. There is no contemporaneous account supporting this claim, which was first made in 1854, apparently on the basis of a recollection of Washington Irving. Irving was six years old in 1789, when the first inaugural was held. A historical claim based upon nothing but the alleged recollection of a six year old, first made more than six decades later, is of highly questionable validity. Combined with the fact that Irving's report of where he was standing during the inauguration would have made it impossible for him to have heard the oath at all, that validity falls to zero."

Well, there you have it.  As a remedy, Rev. Newdow wants an injunction and a declaration preventing the use of these four offensive words:

"Prayer for Relief [No, I am not kidding.  That's what his Complaint says] III. To enjoin Defendant Roberts, in his official capacity and in his individual capacity, from altering the constitutionally-prescribed text of the presidential oath of office while administering that oath to the President-elect at the January 20, 2009 inauguration, as well as at any future presidential inauguration;"

The case was filed in the District of Columbia late last year, and is progressing along.  Justice Roberts has been served with a copy of the Complaint (since he is a party) and he was "quite the gentleman" when the process server arrived to serve the Summons and Complaint at his home.  While the case is percolating along, the script is up in the air.  If you want to see more on this topic, plus the appendices to Newdow's Complaint, click here.

The President's Inaugural Committee filed Answers (along with others) and filed this Opposition to the Motion for an Injunction.  Essentially, the Opposition and the Answers challenge the Motion on the basis that Newdow doesn't have standing.

The matter is pending before the DC federal court.  Newdow has lost these arguments before, and likely will again.  The D.C. federal district court has not yet issued a ruling, but when they do, it will be posted here on their website.

How do you vote?

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, January 14, 2009 at 20:39 Comments Closed (0) |
 
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News Flash: Florida First Grader Robs Classmate Of $1.00 At Knifepoint

Lawyer Claims The Kids Were 'Just Playing'

Think about those headlines for a minute.  There are so many incongruities there I don't know where to start.  Just so you have all of the facts, you can check out this Orlando Sentinel story first.  Let me remind you of just two other facts beyond those in the headline:  (1) kitchen knife; and, (2) school bathroom.

There you have it.

Well, let me mention one more fact ratted out by a third kid who just happened to be nearby in what might qualify as blackmail uttered by the perp:  "If you tell anyone, I'm going to bring my Dad's gun and shoot you." 

Now that you've sat down and digested what seems impossible, let's look at what's going on here.  There are three troubling aspects in this story:  first, perhaps, there's the fact that a first-grader (that's a seven-year old, who may have been "held back" a year or just has a very early birthday), with a kitchen knife at school.  When I was seven, I'm not even sure I knew what a knife was.  Sure, my mother had them on the countertop when she cooked, but we hadn't even started whittling in Cub Scouts yet.  Even when we did start, we got the "Dad talk" of never pointing it at someone else.

Let alone robbing another kid's milk money.  In the school bathroom.  And don't get fooled by the $1.00.  That's just the start.  As he gets older, he'll figure out how to add zeros.  Just think Madoff and you can do the math.

Then there's the lawyer.  Try to wrap your head around that attorney-client conversation.  "Billy [not his real name], tell me what you did with the knife.  Now, where did you spend the money?"  Yes, certainly everyone's entitled to representation, but come on, a first-grader? 

Not a high-priced, high-falutin' Philadelphia lawyer, as my grandfather would say.

That's a conversation between Mom, Dad, the kid and the principal, with an apology to the victim.  And yes, the kid/robber (what else do you call him) gets expelled from school with a trip to the woodshed.  Instead, the lawyer says the kid was just playing and shouldn't be expelled.

Right.

Where has our common sense gone?

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, December 18, 2008 at 11:16 Comments Closed (0) |
 
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Can You Avoid The Tripwire, Please?

It's getting to be that time of the year that we start to see the skiing and snowboarding lawsuits - especially with the dump of snow in our local California mountains these past couple of days.  It's actually one of the things I love about California - especially after living in the Midwest and East coast. 

Not the lawsuits (well, alright, I do enjoy the litigation) - I was referring to the location of the snow.  California's got it all figured out.  We manage to keep our snow where it belongs - in the mountains, not in the valleys where most of us live.  We can choose to travel up into the mountains to enjoy the snow and then leave it there.  On the East coast and in the Midwest, there's precious little you can do to avoid the snow when it falls other than to stay inside. 

And yes, I am one of those people who call my family back East when the weather's balmy out here and they're stuck in a blizzard.  It's the price I pay.

But back to the assumption of risk, which was where I was going before the Weather (or more accurately California's general lack of Weather [notice the capitalization]) got me sidetracked.  Typically we get court decisions in the wintertime that regularly reinforce to skiers and snowboarders that they assume the risk of injury when they get on the slopes - as long as the ski resort didn't do anything to increase the chance they would get hurt.

Now that we've traveled all over the countryside, let's get to today's case, Luna v. Vela, which involved a front-yard volleyball court and a 13-year old kid who joined in the game.  Fabian Luna joined the game about 15 minutes late, and when the ball bounced out of bounds, he ran after it, only to trip over the cord holding up the pole that held up the volleyball net.  Fabian fractured his elbow, and sued Edilberto Vela, the homeowner and erector of the said volleyball net, pole and cord holding up the apparatus.

Does that last part sound lawyerly enough?

In any event, the appellate court overruled the trial court and held Vela responsible to pay for Luna's injuries, determining that Vela increased the risk of injury to the game's participants by installing the cord to hold up the pole that held up the net. 

Call me silly, but without the cord holding up the pole, it's a little difficult to play the game.  Without the cord, the net and pole would be on the ground.  Certainly Vela could have poured concrete around the base of the pole to hold it up, but everytime I've seen a volleyball court up at a family outing, the cords and stakes hold up the two poles.  Luna claimed the cord was "invisible" and that he didn't see it.  The appellate court said the cord should have been marked with flags to make it more visible.

What's your ruling?

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, December 16, 2008 at 15:46 Comments Closed (0) |
 
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How to Get Sued

Most “How To” articles tell you how to avoid getting sued. For those who like living on the edge, here’s the other side of the coin, how you can get sued in 10 easy steps.

1. Take more than your share or provide less than you promised.
2. Blame it on someone else.
3. Ignore telephone calls.
4. Fail to respond to letters.
5. Tell them it’s their fault.
6. Rationalize your behavior.
7. Get angry in response to reasonable requests.
8. Delegate your subordinates to deal with it, and don’t give them any authority.
9. Trump up your own claims to offset their claims.
10. Tell your friends about how they took advantage of you.

Of course this list is endless, but you get the idea. These generic statements can apply across the board to practically any business. In the employment industry, one company identified 10 ways for employers to get sued

If you want to avoid getting sued, treat others fairly and solve their problems. That method creates goodwill, and increases the value of your business. If you provide more than you’re paid for, you create goodwill. Plus, it keeps you from having to hire a lawyer, which not only saves you money, but makes money for you too.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, December 04, 2008 at 00:00 Comments Closed (0) |
 
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Can You Sue God? Is It Necessary To Join Satan As An Indispensable Party?

Apparently Nebraska State Senator Ernie Chambers thinks so - at least on the first part.  The jury's still out on the second.  He sued God in Nebraska state court, but the judge dismissed the case for lack of service:  "Given that this court finds that there can never be service effectuated on the named defendant this action will be dismissed with prejudice," Douglas County District Judge Marion A. Polk wrote from Courtroom 10.  According to the Associated Press article in that last link, Senator Chambers isn't taking it lying down.  " 'The court itself acknowledges the existence of God,' Chambers said Wednesday. 'A consequence of that acknowledgment is a recognition of God's omniscience.'  Therefore, Chambers said, 'Since God knows everything, God has notice of this lawsuit.' "

I don't know about you, but it is a bit of a turn of events from Gerald Mayo's 1971 lawsuit against Satan.  His case was dismissed as well, and somewhat one the same reasoning: 

While the official reports disclose no case where this defendant has appeared as defendant there is an unofficial account of a trial in New Hampshire where this defendant filed an action of mortgage foreclosure as plaintiff [The Devil and Daniel Webster].  The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing to sue in an American Court.  This defense was overcome by overwhelming evidence to the contrary.  Whether or not this would raise an estoppel in the present case we are unable to determine at this time.

If such action were to be allowed we would also face the question of whether it may be maintained as a class action. It appears to meet the requirements of Fed. R. of Civ. P. 23 that the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, and the claims of the representative party is typical of the claims of the class. We cannot now determine if the representative party will fairly protect the interests of the class.

We note that the plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to service of process.

For the foregoing reasons we must exercise our discretion to refuse the prayer of plaintiff to proceed in forma pauperis (Latin:  "in the form of a pauper").

I don't get it.  Everybody's so concerned about jurisdiction.  If as Senator Chambers argues, God is all around, then isn't he/she in the courtroom, too?  But that's just the half of it.  I think you can't sue God without also bringing Satan into the lawsuit.  Any case takes two sides to argue.

Just think.  We might even be able to make some headway in the election and the current economic crisis. 

My only hope is that Senator Chambers files an appeal.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, October 15, 2008 at 15:18 Comments Closed (1) |
 
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