May It Please The Court
Quote of the Day - Now and then we had a hope that if we lived and were good, God would permit us to be pirates.
Pirates, Finders-keepers And Sunken Treasure
As we grew up, each of us at some time uttered the words, "Finders-keepers" after the joyous glee of discovering some previously unknown treasure with a value we perceived would make us rich, and all the while safe in the knowledge that if we invoked that mysterious incantation, title to our discovery would pass to us with all the certainty of our ownership good against the entire world of others who might lay an unjustified claim to it.
The Fourth Circuit, on the other hand, now tells us that we were just "a step away" from being labeled a pirate. Not the fanciful pirates we discovered at Disneyland, but the type of pirates the Court holds in disdain and who pillage and plunder the treasure of the high seas for their own profit. Unless, that is, if you choose to believe the Fourth Circuit over the French government.
What am I talking about? The R.M.S. Titanic, a British ship sailing under a British flag, owned by a British company, late of that British port, Southampton, that never made it to the United States, having struck an iceberg some 400 miles off Newfoundland, Canada, sinking to the ocean floor less than three hours after the collision. Think about that for a moment: English ship, sunk off Canada. What are U.S. Courts and French Courts doing trying to exercise jurisdiction over the salvage efforts of the goods aboard the ship? First and foremost, the salvagor, the RMS Titanic, Inc., submitted to the jurisdiction of the U.S. Court after obtaining title to some 1,800 artifacts in 1987 from a French Administrative Agency.
Only a pirate would know why. In fact, those were the words of the court in denying RMS Titanic, Inc. title to the items discovered at the bottom of the sea: "A free finders-keepers policy is but a short step from active piracy and pillaging," Judge Niemeyer wrote. The Court elected to respect the French ruling, but ultimately decided not to grant the salvage company full ownership rights to the sunken treasure.
The Court was troubled most about the salvagor's attempt to get two bites at the apple: finder's rights as a consequence of the artifacts in its possession and at the same time salvagor's rights over the articles at the bottom of the seabed that were not yet in its possession. Salvage rights, in admiralty law, are designed "to give[ ] potential salvors incentives to render voluntary and effective aid to people and property in distress at sea." As the Court properly noted, it's a little late for that incentive now, but instead noted that unless sunken treasure is ancient, and no one could possibly appear in court to lay claim to it, then the title to the goods lays with the original owner (now insurance companies), and the property is not deemed abandoned.
Therefore, since it's not abandoned, you can't apply the law of "finds" (finders-keepers) to the undersea property.
It makes sense, but it's too bad. I kind of liked being a pirate.
Incentivizing Trust Babies To Work For Their Inheritance
If you're paying your taxes and not otherwise using unscrupulous tax shelters, then you might want to consider how what you've earned gets passed on to your children, grandchildren and heirs. There a number of alternatives out there, including generation-skipping trusts such as dynasty trusts, as well as other planning mechanisms to consider. But the New York Times points out a "new" (it's been around for about fifteen years) twist to estate planning called the incentive trust.
The idea behind the "incentive" helps parents or grandparents avoid creating trust babies who inherit money, but lose their elders' drive that led to the fortune in the first place. Some incentive trusts dole out "dollar for dollar" - your heirs will receive a dollar for each dollar they earn. There are other provisions that allow for partial, lump-sum payments upon achieving certain life milestones, such as graduations, religious events, marriages, births and the like. Still others are tied to performance of some type such as obtaining a job, a promotion, even positive performance reviews.
There are no standard set of guidelines, and to be sure it's important to consider flexibility in the terms of the trust to allow for differences in your heirs' earning capacities, interests and unfortunate events like an injury or disability that may prevent achieving the measurements detailed above. Many trusts allow for a safety net as a catch-all for heirs that may fall outside strict achievement guidelines, but nonetheless within the category of a deserving heir.
Critics, on the other hand, complain that incentive trust end up exerting too much control over the lives of the heirs.
In some ways, these trusts are a variant of an ethical will, and constitute an effort by the parents and grandparents to pass along their values to their children and grandchildren. Since very few incentive trusts have been challenged in court, there's little guidance for lawyers out there trying to put these wishes into words. Contrary to most legal documents, however, flexibility may be a crucial key to the success of the trust and help avoid litigation. Perhaps most important, choosing a strong, but flexible trustee who understands the family dynamic will allow heirs to receive the family fortune, and at the same time ensure that the heirs earn their way instead of inheriting it.
In other words, if you had to choose a second father, mother or guardian for your heirs, who would you pick to manage your money and transfer it to your heirs according to your wishes?
Off-duty, Non-required Physical Activity Not Covered By Work Comp
If your employer requires you to stay in shape in order to do your job (such as a fitness trainer, a dancer or performer, certainly as here the police and fire departments), and you elect to play in a pickup basketball game "in order to maintain cardiovascular fitness," are you entitled to worker's compensation benefits if you're injured in that game?
Probably not, and in this case, definitely no.
How about a league sponsored by your employer? Does that make it a closer call? What if your boss plays on the team and encourages you to play? What about a company picnic? Most of the cases cited in this opinion rule against providing such benefits.
The court said that it turns on the statute added back in 1978, California Labor Code section 3600. The Court said the injury is covered when "the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment" and "the injury is proximately caused by the employment, either with or without negligence."
That pretty much leaves out most off-work, non-required voluntary physical activity.
Coast to Coast Looks At The Role Of DNA Evidence In Criminal Convictions
Our internet radio program, Coast to Coast, on the Legal Talk Network and co-hosted my fellow Law.com blogger, Robert Ambrogi, looks at how DNA is being used in many cases to prove previously convicted people innocent of crimes for which many have served decades in jail. You'll hear about the Innocence Project, a non-profit legal clinic founded by Barry Scheck, of O.J. Simpson trial fame and his partner, Peter Neufeld, which has freed 172 wrongly convicted men and women. We have two guests on this week's show.
Joining us is Attorney Robert N. Feldman, partner at the Boston firm, Birnbaum & Godkin, LLP, and one of the founders of the New England Innocence Project. He is a lawyer with the firm Birnbaum & Godkin, LLP and also one of the founders of the New England Innocence Project. Rob represents wrongly convicted individuals who are seeking compensation for false conviction and imprisonment. His practice also focuses on civil business litigation … with clients ranging from large public companies to new businesses and individuals.
Also joining us is Attorney Josh Marquis, has been District Attorney of Clatsop County (Astoria) Oregon, since 1994. He is currently Vice President of the National District Attorneys Association and a member of that group's governing Executive Committee. Attorney Marquis is a former president of the Oregon District Attorney's Association and has served on the Board of Directors of the since 1997. He is also a frequent guest on national radio and television programs discussing criminal justice and has written extensively on capital punishment and debated the subject from Oregon to Mexico to Brussels.
Can Skiers And Snowboarders Co-exist In The Slopes Of The Court Of Appeals?
MIPTC is off to the local slopes tomorrow for a bit of the (unfortunately mostly man-made) white stuff, but this case gave me a bit of pause before going. Regular readers know that I've been skiing since college and previously qualified as an almost-official ski bum, having taught my way through school and on-and-off since then when I can get away.
No, I don't snowboard, and yes, they whizz by me almost as fast as I whizz by them (in self-defense, of course) and there are always two thin, long planks tied below this skier's feet, now somewhat shaped to add some depth to those carved turns. When I stop and watch those crazy snowboarders, though, I sometimes think of the attendant liability associated with skiing and snowboarding, especially when the two collide. It's the bane of being a lawyer. I see risk where others ignore it.
Every season, the obligatory appellate case(s) come out and remind us that skiing and snowboarding are dangerous sports. They each cite back to the general rule that you assume the risk of injury unless the resort does something grossly negligent to increase your risk. Those waivers on the back of your ticket actually work. Most ski resorts do nothing of the kind, and consequently, the plaintiffs who bring "I-was-injured-on-your-slopes-so-you-owe-me-lots-of-money"cases frequently lose.
I haven't conducted a scientific survey, but since I've been a lawyer, I've read most of these cases because of my interest in skiing and believe that something like 95% of them are losers for the plaintiff. Yet they keep coming. So when I read a second recent case, again involving Mammoth Mountain, I was surprised that the Plaintiff won, but actually not too surprised.
So go ahead, snowboarders, get your pen at the ready and your keyboard warmed up to complain.
I wasn't surprised because both cases turned on one fact: the courts ruled for the plaintiffs, and sent the cases back to the trial court to determine whether the snowboarder's conduct was so reckless that there was no assumption of the risk. In the first case, a snowboarder ignored his coach's instructions, went on a steep run he'd never skied before, "raced" against his friends, didn't pay attention to where he was headed, and at the last minute smashed into a skier standing alongside the run, and hit the skier so hard that they both flew 50 feet in the air.
Here's how the court put it the resulting damage: the standing skier "suffered severe injuries. The impact shattered her ankle and broke her lower leg into 16 pieces. Her right tibia and pelvis were fractured, the muscles and tendons in her thigh were torn, and she was bruised throughout her body. The surgeon who operated on her equated her bone fractures with those suffered in a car or motorcycle accident."
The snowboarder was unhurt.
Is it hard to imagine why snowboarders are held liable?
Paying Taxes: Sport Or Folly?
Forgive me here if I take a position against taxes, but as you may know, it's a bit of a favorite American pastime. It's OK for everyone else to pay taxes, just don't raise mine, and just don't ask me to pay any more than my fair share. By the way, if I can figure out a way to avoid paying some of those taxes, don't begrudge my deduction.
It's admittedly a tough position to take knowing that lower tax dollars may mean that our men and women in green may not have enough armor, that the shuttle is built by the lowest bidder, our school teachers aren't paid sufficiently, and on and on, all the way down to the pothole across the street that is now big enough to swallow my left front end if I don't swerve in time to avoid it.
But I better stop before I talk myself out of complaining about taxes. Who hasn't heard of the $400 hammer, after all?
This article about the IRS prosecuting lawyers who come up with tax shelters did more than strike me. It's just plain wrong. Think about it. Congress passes laws that require us to pay taxes. Once you establish the rules and write them down, it's up to the lawyers to figure out the loopholes and the way around them. The tax code fills up 24 megabytes of space on my hard drive, which on my iPod leaves only enough room for Stairway to Heaven and The Long and Winding Road. There really isn't much difference between the songs and the code anyway, but I digress.
So, when enterprising lawyers go out there and successfully figure out how to shelter money from taxes, the IRS takes aim and prosecutes the lawyers for being smart enough to figure out what they did wrong when they wrote the code. I'm not sure if the lawyers are being prosecuted because they showed the ________ (fill in your own word) of the IRS and Congress to the rest of us or because the result of their work actually means less dollars in the government's hands and more money in our hands.
Sure, there's another way to look at it: the lawyers actually did something illegal that was precluded by the code, and they should be punished. As you can see just from these paragraphs, however, there's no such thing as black and white in the Internal Revenue Service code. To prove that, all you have to do is look up section 61 that defines income and see what a mess the whole thing starts with.
If the IRS wants to collect money from us, how about making it simple? You know, just like it was when we were kids and dividing up the spoils from the lemonade stand: "One for you and two for me, one for you and two for me..."
Remember, April 15 is just around the corner.
Those Pesky Little Licenses For BlackBerrys and Utah Dads
MIPTC won't say "I told you so," but I did say it. Several times. Seems that the US Supreme Court doesn't want anything to do with BlackBerry's dispute with the outcome of a lower court ruling and a $565 million verdict against the company. Expect a rush on alternative phones, unless Research In Motion digs a bit deeper into its pockets, something it hasn't been willing to do yet. Even if you do keep your BlackBerry, you can expect prices to go up. Way up, but the company's stock is, well, in the tank.
In another completely unrelated story other than the word "license," it seems that Utah will soon be revoking the licenses of Deadbeat Dads. For fathers (and likely some mothers) who aren't paying child support in Utah, it appears that the privilege of driving will soon become a thing of the past, unless they can stay current on those monthly payments.
No matter what type of license you have, be it a patent, trademark, copyright or even driver's license, it looks like the price of it is going up.
In Italy of All Places?
After spending several years living in
Apparently, there are laws on the books in
While I am not one to debate the existence of the central figure of one of the world’s major religions, I am quite certain that the drafters of these two laws never foresaw this particular application.
Stay tuned for follow-up coverage, but I am willing to guess that this case will ultimately be tried in not in an Italian court, but where it has been for centuries: between theologians, historians and philosophers.