May It Please The Court
Coast To Coast Internet Radio Program On The Reauthorization Of The Patriot Act
The Legal Talk Network's Coast to Coast, with my co-host, Robert Ambrogi brings into focus a discussion of the Patriot Act up for debate as some of the provisions are set to expire December 31st. Although designed to give federal law enforcement and intelligence agencies tools in the fight against terror, some say civil liberties are being violated.
Our guests include former FBI agent and now candidate for Congress, Coleen Rowley, who talks about the front-line need for information balanced with the protection of rights. From the time she was eleven years old, Coleen was determined that she would one day become an FBI agent. Then, in 2002, she exposed lapses in the investigation of suspected Al Qaeda operative Zacarias Moussaoui and also testified to the Senate Judiciary Committee about some of the endemic problems faced by the FBI and the intelligence community. In April 2003, following an unsuccessful attempt to warn the Director and other administration officials about the dangers of launching the invasion of Iraq, she "stepped down" from her legal position and returned to being an FBI Special Agent. She also warned of the potential excessive National Security Letters. In 2004, Coleen retired from the FBI. She is presently running for Congress in Minnesota and speaks publicly on ethical decision-making and balancing civil liberties with the need for effective investigation.
Our second guest is Attorney Jameel Jaffer with the American Civil Liberties Union, who is currently counsel for plaintiffs in challenges to the provisions of the Patriot Act. Jameel Jaffer is an attorney for the American Civil Liberties Union and has litigated several significant cases involving government secrecy and national security. Mr. Jaffer is currently counsel to the plaintiffs in Doe v. Gonzales, a constitutional challenge to the FBI's authority to issue "national security letters" in foreign intelligence and terrorism investigations. The district court struck down the national security letter statute in September 2004 and Mr. Jaffer recently defended the district court's decision in argument before the Second Circuit. Mr. Jaffer is also counsel to the plaintiffs in MCA of Ann Arbor v. Ashcroft, a challenge to section 215 of the Patriot Act, another controversial surveillance authority. Finally, he is counsel to the plaintiffs in ACLU v. Department of Defense, litigation under the Freedom of Information Act that has resulted in the release of thousands of documents concerning the interrogation, abuse, and torture of prisoners held by the United States in Iraq, Afghanistan, and at Guantánamo Bay Naval Base. Mr. Jaffer is a graduate of Williams College, Cambridge University, and Harvard Law School. He was an editor of the Harvard Law Review from 1997 to 1999 and his writing has appeared in that journal as well as in the Journal of Transnational Law & Policy. After law school, Mr. Jaffer served as law clerk to Hon. Amalya L. Kearse, United States Court of Appeals for the Second Circuit, and then to Rt. Hon. Beverley McLachlin, Chief Justice of Canada.
Planning A Flight For The Holidays? You May Have To Fight For Your Flight
And you're dreading it. You know what the holiday crush is like: canceled flights, misplaced baggage, long lines and the added thrill of having your underwear x-rayed by the Transportation Security Agency, let alone the crowds of surly passengers, crying babies and understaffed, bankrupt airlines whose pilots are planning on going on strike right before your flight departs.
Rethinking your plans yet? Well, never fear, the Courts are sympathetic to your plight. Take the case of Thatcher A. Stone of Akerman Senterfitt LLP, an aviation lawyer and law professor at the University of Virginia who went through much of what I described, decided he wasn't going to take it anymore, and sued Continental Airlines.
Thatcher, who is divorced, planned to take his daughter to Telluride, Colorado for a week-long ski vacation between Christmas and New Year's Day last year. After checking their bags and clearing security, they arrived at the Continental Airlines gate in Newark, New Jersey, when they were "bumped" on an otherwise oversold flight, and presented with the option to leave from Newark on the day before they were scheduled to return from Telluride. Thatcher refused the offer, if you can call that option an offer.
To add insult to injury, the baggage handlers had transferred their bags to the plane departing for Telluride, but refused to pull the bags off. All of their winter ski clothes went to Telluride. Thatcher and his daughter were officially bumped, and went home to Manhattan, where Thatcher lives and practices. Their bags returned from Telluride four days after the bags left on the Christmas-day flight.
Not to be dissuaded since he didn't get to spend much time with his daughter, once their winter clothes returned, Thatcher went to Stratton, Vermont but was only able to get there for one day.
Judge Diane Lebedeff understood his frustration, and awarded $3,110 to him against Continental Airlines. She issued a thirteen-page opinion (which is on Thatcher Stone's webpage), according to this AP article, and cited a law review study that "since 1990, an average of 900,000 domestic passengers a year are bumped. The U.S. Department of Transportation says 96 percent of those passengers accept the airlines' compensation offers, leaving about 36,000 bumped passengers who may be entitled to sue."
So there's hope for the 36,000 of us who have enjoyed the same experience as Thatcher. At least we know a good Plaintiff's lawyer.
SFO Prop 65 Warnings Now Must Be Posted In Three Languages
Proposition 65 has just taken a new twist in San Francisco, but then again, that shouldn't surprise you, especially if you're from Southern California. Even so, that's what I heard some Northern Californians say about us the last time I went North of the 41st parallel - nothing we do down here surprises them up there, either. But I'm off-topic again. Prop 65, as you may remember, requires those now ubiquitous signs to be posted everywhere warning us that there are chemicals known to the State of California (both Northerners and Southerners) to cause cancer and reproductive harm in just about everything, including, for example, this blog.
Just kidding about that last part.
Two days ago, San Francisco passed Ordinance 050253, recommended for adoption last month by a committee of the Board of Supervisors, which requires Proposition 65 signs to be posted in English, Spanish and Chinese throughout the coextensive City and County. Now, you can read all about it in three languages, even if you don't read the other two. The concern seems to be centered on the possible high levels of mercury in fish.
Just in case you don't read these languages, you can see similar advisories about fish consumption in Cambodian, Korean, Vietnamese, and Laotian on California's Office of Environmental Health Hazard Assessment. MIPTC can likewise be translated for your ease of reading into Chinese, Korean and Spanish, along with five other languages.
For the rest of the state, Prop 65 warnings must be in English.
Doting On Supreme Court Nominations At The Expense Of Others
Sometimes the weight of expectations put on the judicial system seems like more than we could reasonably ask it to handle. But handle it, it does, thanks to those serving in the trenches. Think, for a moment, just about today's headlines:
Three Sue California Over Transplants - Some thirty people have died waiting for transplants, and they claim they weren't told that the hospital hasn't had a liver to transplant in over two years. While the claim is based on an alleged lack of information, it's the issue of weighing lives.
Milosevec Requests Health-related Delay In War Crimes Trial - It's not the continuance, but the consequences of sitting in judgment over war crimes.
Statement On Denial of Habeas Rights For Guantanamo Detainees - The ABA felt it was so important that my inbox was greeted with one more piece of email, asking me to contact my senators to preserve the sense of justice that we've been fighting for since the American Revolution.
Judge Halts Logging Project In Giant Sequoia National Monument - The headline pretty much begs the question, but the Forest Service claims it was going to allow the forest to be thinned to prevent fires from damaging the giant Sequoia trees. Environmentalists claim logging would injure wildlife.
Sealing Divorce Records For The Sake Of Corporations - Should we seal divorce records of corporate executives that may include confidential information about corporations, or expose them to public scrutiny?
In just skimming five random items from the legal news today, there are issues that involve new biology, genocide, human rights, the environment and privacy rights, and that's not all of today's news, and certainly doesn't address a host of other hot news about the Supreme Court, abortion rights and a slew of topics that are covered regularly in this blawg and elsewhere.
As my Dad used to say, these are life-changing events, especially for the people involved. What requirements do we place on those who handle them? We send someone to law school, have them practice law for awhile, and then appoint them to the bench. We scrutinize the appointment briefly, but aren't we doing it backwards?
Justice Alito is getting a lot of attention these days and that attention is certainly justified. He may be participating in decisions that may affect on us. But it's unlikely that most of the cases, including the four of the five noted above, will ever get to the Supreme Court. They'll be decided by state court judges that get comparatively little scrutiny and federal judges that get significantly more evaluation than a state court judge, but much less than a Supreme Court nominee. These lower court judges, however, handle the day-to-day decisions that affect more of us more often than any Supreme Court ruling could ever hope to.
When was the last time you (or someone you know) were directly affected by a Supreme Court decision?
When was the last time you (or someone you know) were directly affected by a trial court decision?
The latter is much more likely, just based on sheer numbers. I'm not questioning why we dote on Supreme Court nominees. The question here is why isn't that level of attention, or even something passingly close to it, paid to the judges-in-waiting who affect more of us?
Type I, Type II, Type III, Which Indemnity Clause Is Your Contract Type?
If Type I and Type II contract indemnity clauses make your head spin, then here's a solution for you: McCrary Construction Co. v. Metal Deck Specialists. It's a brand new case that ties up the explanation of these somewhat troublesome provisions into a nice, tidy little package, and even explains Type III indemnity clauses, although the court doesn't actually use that latter term.
To understand the ruling, the facts set the stage. General Contractor McCrary worked on a construction project that involved a roof. Metal Deck built the roof, and another subcontractor, Horizon Sheet Metal, was responsible for HVAC at the project. Horizon employee Frederick Kimbark died after falling through a hole in the roof by Metal Deck. Metal Deck covered the hole with plywood, but didn't secure it. Kimbark moved the plywood aside, and then without looking, started to walk and fell through the hole.
In the trial, Metal Deck and McCrary disagreed about whose responsibility it was to securely cover and mark the hole. Apparently there was some evidence that McCrary may have assumed the responsibility to cover and secure the hole while at the same time, Metal Deck had an affirmative duty to comply with all safety rules and regs.
The jury assessed the responsibility this way: 45% to McCrary, 30% to Metal Deck and 25% to Kimbark, with none to Horizon. McCrary and Metal Deck then paid their portion of the $1.17M judgment to Kimbark's estate. McCrary then sought full indemnity from Metal Deck and Horizon for its 45% share based on the contract language, which included an indemnity provision in both contracts.
Here's how the court described the three types of indemnity provisions: Type I provides for the express indemnity of the indemnitee (here McCrary) despite McCrary's active negligence. This particularly nasty type of provision essentially makes the subcontractor the insurance company for the contractor, and after January 1, 2006, will no longer be enforceable in California, now that Assembly Bill 758 has been signed into law, amending Civil Code section 2782.
Type II requires indemnity only where the negligence of the indemnitee (McCrary) is passive, and not active. The sub is still the insurance company for the general, but only in situations where the general didn't do anything wrong.
Type III, otherwise known as a general indemnity clause, requires indemnity only where the negligence was caused by the indemnitor (here Metal Deck) and where the negligence is not the result of either active or passive negligence by the indemnitee (McCrary). Here, the general has to be squeaky clean in order to get any money out of the subcontractors.
In this case, McCrary had a Type III indemnity provision, so it was unable to receive any indemnity for its 45% share of the verdict from either Metal Deck or Horizon. If you want to see how to draft these various provisions (depending on who you represent), the discussion section of the opinion provides the actual language.
In other words, read your contracts carefully.
Great Park Board Goes To Europe To Evaluate Greater Parks
The Orange County Great Park has been the bane of North Orange County, and the darling of South Orange County. Kind of like the love that Northern California and Southern California have for one another. Me? I live in Orange County, right in the middle.
The Board of Directors of the Great Park recently went on a trip to Europe. They viewed parks, presumably to get an idea how to build the one that we have. The Orange County Blog apparently followed along, and took photos (click on the "More Photos" link in the sidebar of the last link).
Not everyone agreed with the trip, and a city council candidate was predictably critical of the trip, as were several others who commented on the Orange County Register's weblog (I couldn't find the comments to link).
No matter what your vote was on the Park, it's a fact, and you'll have to enjoy it, whether you wanted an airport or not. Even so, you can still have an effect and vote on the designer. Even if you didn't go to Europe.
Smile, Your Honor, You're On Candid Camera
What's wrong with television cameras in court? Justices Souter, O'Connor, Kennedy and Breyer don't think it's a good idea, and point to the Simpson trial as an example of why it's not. Well, they're not going to get off that easy, even though O.J. did. In an American Bar Association event yesterday, Justice Kennedy said, "A number of people would want to make us part of the national entertainment network." Some of the Justices are a bit more adamant about it than others. Justice David Souter told a congressional panel in 1996, "The day you see a camera come into our courtroom it's going to roll over my dead body."
Them's fightin' words.
At least to a journalist. (Did I tell you that I'm now a card-carrying member of the LA Press Club? They let me in based on my blog credentials.) But back to the story. What's the big deal? If the Justices were embarrassed by the O.J. trial, then the solution isn't about television, it's about the system that created the spectacle, and the fastest way to solve that problem would be to open the doors of of the courthouses. Open access would normalize the system and stop the grandstanding, if that's what strikes fear in the Justices.
Obvious situations where television isn't appropriate include juvenile and certain family law matters, and perhaps some criminal matters. On the other hand, we're an open society, and an open government. Former Canon 35 (now Ethical Consideration 5-1) of the American Bar Association used to recommend against cameras in the courtroom, thinking that the lawyer's duty to the client might conflict with the lawyer's desire to gain an inappropriate benefit from being on television at the expense of the client. With Court TV, we've now gotten beyond that issue.
Congress broadcasts on C-Span, and Senator Arlen Specter (R-PA) thinks it's time the Supreme Court started to fill a slot, building on Senator Grassley's (R- IA) fourth bill to get cameras into federal courtrooms. Frankly, I don't understand the problem. Think about it. We already have Judge Judy, Mills Lane and Judge Wapner. It can't get any worse than that. In fact, cameras in real courtrooms would be a welcome improvement over the present fare.
If their concern is a possible increase in the lack of civility in the courtroom, then I can't imagine a better enforcement tool. Lawyer disciplinary proceeding would have more instant replays than the NFL. "That's five yards for an intentional smirk at opposing counsel." We could develop a whole new set of penalties. The problem, though, is that I just can't get the image out of my head of yellow flags flying out from behind the judge's bench, hurling toward the lawyers. It would be a great way to rule on objections.
I've always thought judges should be wearing black-and-white-striped shirts instead of black robes anyway.
Coast To Coast Internet Radio Program On What's Next For Vioxx
Our very special guests in the discussion are nationally recognized Attorney Tom Girardi of the LA firm of Girardi-Keese, known for taking on goliaths in the past. Tom has extensive experience in trying pharmaceutical litigation cases. One of his best known cases was against Pacific Gas, who agreed pay $333 million to residents of the desert community of Hinkley, California. The residents blamed incidents of cancer and other diseases on contaminated water leaked from a gas pumping station. That case was the storyline for the movie ‘Erin Brockovich.’ Attorney Girardi was appointed by Judge Eldon Fallon the the Liaison Committee for the Multi-district Litigation committee in the Vioxx product litigation cases.
Our other guest is Attorney Dawn Barrios of the Louisiana firm of Barrios, Kingsdorf & Casteix. She represents approximately 2000 personal injury clients from more than 30 states. Both Tom and Dawn serve on the Liaison Committee for MDL-1657 for VIOXX product liability litigation.
Our third guest is New Jersey Law Journal reporter Lisa Brennan who covered the recent New Jersey Vioxx trial and has spoken to jurors and the lawyers on both sides since the verdict. Don't miss the opportunity to hear this discussion.
Tune in here, or click on the podcast icon below.