May It Please The Court
Quote of the Day - Celibate: A member of a union opposed to the union of members.
Lawyer2Lawyer Internet Radio Discusses the Employee Free Choice Act
There has been much debate as of late on the proposed Employee Free Choice Act (EFCA) of 2009. Please join me and my fellow Law.com blogger and co-host Bob Ambrogi, as we welcome Professor Richard A. Epstein, Professor of Law at the University of Chicago Law School and Attorney Nancy Schiffer, Associate General Counsel with the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), to explore both sides of the Employee Free Choice Act debate and what the outcome would mean for the future of unions and employers and the lawyers who represent them.
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.
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?
Slander Per Se Versus Slander Per Quod
Defamation generally falls into two categories: slander and libel. Slander is spoken defamation, libel is written. Within slander, there are several types of speech that constitutes defamation.
In California, there are five types of slander (this part is right out of the Civil Code section 46 statute): Speech that: 1. charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; and, 4. imputes to him impotence or a want of chastity; or 5., which, by natural consequence, causes actual damage.
The first four fall within the category of slander per se, or slander in and of itself. The last one is slander per quod, or false statements that cause some special damage. Malice and the special damage must be alleged and proved to constitute slander per quod.
On the other hand, slander per se arises when the false remarks in themselves may form the basis of an action for damage in which both malice and damage are presumed as a matter of law. In other words, if someone utters something about you in one of the first four categories, then you don't have to prove malice or damages.
The law considers the statements so bad that you're automatically entitled to damages.
Now don't get excited here if you're in court and an attorney slanders you. We have immunity from liability for making just those kind of statements (see Civil Code section 47(b). After all, it's just our job.
So, now that you've spent the last five minutes in law school wondering what the heck I'm talking about, let me explain why I gave you all of that background. Here's the setup.
J. B. Nethercutt, the now-deceased father of Jack B. Nethercutt, II, founded the Merle Norman Cosmetics Company and began collecting automobiles in 1956. In 1978, Michael Regalia left his position as a partner in an automobile body and paint shop to work for J. B. Nethercutt on J. B. Nethercutt's private automobile collection, then known as the Merle Norman Classic Beauty Collection.
What else would you call it?
Everything went smoothly for a long time. Then, in 1995, the Merle Norman Classic Beauty Collection became The Nethercutt Collection, an automobile museum that also restored cars. J. B. had established The Nethercutt Collection as a not-for-profit foundation funded by his estate. J. B. first appointed Regalia executive vice president of the foundation and then promoted him to president.
When J. B. was hospitalized in August 2004, his son, Jack B. Nethercutt, II assumed control of the overall operations of The Nethercutt Collection, subject to his father's approval. Unfortunately, J. B. died in December 2004.
According to Regalia, he thereafter met with Junior to talk about his salary. Regalia pointed out to Junior that he had played an integral part in obtaining a donation from Betty Locke of her Talbot-Lago automobile, which was appraised at $2.3 million. Regalia also told Junior that he had been under budget every year he had been president, and he believed he had earned "consideration for more compensation."
Junior offered Regalia a $10,000 raise. Not happy, Regalia asked for more, and Junior said he'd think about it overnight. The next day, Nethercutt raised Regalia's salary by $35,000, to $160,000 per year. Because J. B. had died recently, Junior believed that Regalia was still needed.
That's where things started to go south.
Junior claimed Regalia wanted a 10 percent finder's fee for the "Talbot" donation or $230,000. Junior refused to pay Regalia the finder's fee. On the other hand, Regalia denied that he asked for a commission for the Talbot-Lago contribution.
Just to set the record straight, Junior fired Regalia.
Junior then held a meeting of employees of The Nethercutt Collection. According to Christopher Parker, one of the employees at that meeting, Junior said he thought that Regalia acted as if he owned the museum. Junior also said certain people did not want to work for Regalia, and, therefore, Junior had to terminate Regalia. According to Kenneth Sisk, another employee who apparently described the same meeting, Junior said that "people would leave if Mr. Regalia had stayed."
Here's where things really went south.
The following week, Junior and his wife Helen, a board member of the foundation, held a meeting attended by most of the restoration staff. According to Parker, Helen said that Regalia had said some hurtful things about her and that he wanted a $250,000 finder's fee for the Talbot-Lago donation.
Yes, it's hearsay, but admissible in trial.
According to Junior, in April 2005, Locke - who had donated the Talbot Lago, was at The Nethercutt Collection's facility having work performed on an automobile. According to Lisa De Lao, the secretary for The Nethercutt Collection, Locke asked Junior why Regalia had been terminated. Nethercutt said Regalia had been terminated for the good of The Nethercutt Collection. Nethercutt told Locke that Regalia had demanded a finder's fee on the donation of her Talbot-Lago.
Junior apparently did not think that Locke believed him. Nethercutt then told Locke that "the employees couldn't get along with Mike Regalia, or Mike Regalia couldn't get along with the employees"; that "people were threatening to leave if [Regalia] stayed"; and that, in his opinion, Regalia "had been abusive."
Things got worse.
Apparently describing the same conversation, Locke testified that Nethercutt told her that he terminated Regalia because, "if he had not fired him, all of the other personnel would have quit."
According to Bruce Meyer, another board member of the foundation, Junior told him that Regalia demanded a finder's fee for helping acquire Locke's Talbot-Lago. Meyer did not believe that Junior would fabricate such an account. If the event actually occurred, Meyer would view such a demand as inappropriate because Regalia was an employee and he Regalia's efforts to acquire the Talbot-Lago were "just part of his line of work."
In his deposition, Regalia's lawyers asked Junior if his wife had told people that Regalia had tried to extort money from The Nethercutt Collection. Nethercutt responded, "Only in the aspect that he demanded a finder's fee for the Talbot-Lago." There is no evidence that Junior actually said that Regalia attempted to extort money.
Here's where that law school lesson comes in handy. Notice that this statement does not fall within one of the first four categories. It's actually only in the last category - the one that requires a showing of both malice in making the statement and damages from the statement being made.
In an attempt to show damages, Regalia testified that his new restoration business, Regalia Concours Restoration, depended on the car collecting community, and his potential customers were those at the top level of that community. Such customers needed to trust Regalia and believe in his integrity.
The jury, however, didn't buy Regalia's testimony, probably because he didn't have any Regalia Concours Restoration testify that they didn't use him because of the allegations that Junior made against him.
The Court agreed, and said since there was no showing that Junior or Helen intended any malice and that Regalia failed to show damages, the jury was correct in holding for Junior and Helen against Regalia.
Now where did I park my Lamborghini?
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.
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.
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.
Helmets For Motorcycles, Skating, Skateboarding, Bicycles And Skiing
My heart goes out to Liam Neeson and his family for the loss of his wife, Natasha Richardson, as well as Mary Bono for the loss of her husband, Sonny Bono, both to skiing accidents. Many other families have lost loved ones to skiing accidents and even more to bicycle, motorcycle and skating accidents.
Some deaths and severe injuries in each of those categories may have been prevented or lessened by the use of helmets. Many parents require their children to wear helmets while biking, skating and skiing. It's a good practice, despite the plainitive, "Aw Mom, do I have to?", which is almost immediately followed by a "If you want to live in my house, you'll follow my rules" response. I wear a helmet when I ride a bike and on my motorcycle, and my Mom doesn't have to tell me.
On the other hand, my skating and skateboarding is so bad that I don't have to worry about wearing a helmet because I won't be seen on either one. The world is a much safer place without me on a skateboard.
But I don't wear a helmet skiing.
Is that contrdictory? Hypocritical? I don't think so. Let me explain. Generally snow is much softer than pavement. For anyone who's skied on ice, however, there are exceptions to that rule. I don't think there's anything harder than ice other than my head, as my father used to claim when I was much younger.
But when it comes to ice, just like when I drive, I choose not to ski. I mean I also choose not to drive on ice because it's too slippery, not because it's hard - you know what I mean. When it comes to danger, I'm generally careful. But when it comes to skiing in the trees and over moguls, I charge right in. So in some instances, I choose danger, and in some instances I don't.
Here's what I've left out so far: I'm a ski instructor. Have been for more than thirty years. I teach expert level skiing, and I teach people how to ski in the trees and over moguls (at the same time). I also played football in high school and a bit in college. As a consequence of both, I generally don't fall a lot when I ski, and when I do, I have a sense of how to fall and not injure myself. But I don't wear a helmet skiing. If I got on a skateboard to learn it, however, I would wear a helmet. Now does it make sense?
While I don't know whether Natasha Richardson was an athlete, we do know she was taking a beginner ski lesson and fell. Likewise, I don't know about Sonny Bono's skiing ability. But skiing is a dangerous sport. It says so right there on the back of your ticket. In case you haven't read one in a while, stop right here. Put the computer down and go into the back of your closet and pull out your ski jacket. Look at the tag you've got clipped to your zipper. Flip it over and read. See? It says right there, you assume the risk of all injury.
So there you have it. Now you know. Just like riding a motorcycle, a bike, a skateboard or even going out on your inline or roller skates, skiing is a dangerous sport. If you're going to participate in a dangerous sport, especially where the danger outweighs your skills, then wear a helmet and be safe.
They don't call 'em brain buckets for nothing.
Lawyer 2 Lawyer Internet Radio Inspects the Madoff Scandal
While Bernie Madoff awaits sentencing for the largest Ponzi scheme in U.S. history, hear from one of his victims - Lawrence R. Velvel, Dean of the Massachusetts School of Law. Join me as I welcome Dean Velvel as he tells his story and how he is turning his experience into activism, along with special guest, Attorney Ross B. Intelisano, partner of the law firm Rich & Intelisano LLP, who represents other Madoff victims. They will take a look at the fate of the victims and who else could be involved.
How To Challenge A Red Light Ticket
Perhaps you're out for something other than a Sunday drive, as my grandparents used to observe when a driver whizzed by. If you are, then perhaps you've also had the experience of driving through a pink light.
You know: the fourth color on a traffic light - somewhere between yellow and red. The "I'm-going-too-fast-to-stop-and-the-light's-still-yellow" syndrome. In other words, not yet red and maybe no longer yellow.
It's at that point that you see the white light. Not the one where you find out whether you've lived a clean life, but when the white flash immediately precedes the silent "click" of a red light camera. Just after that, the image of you in the middle of an intersection you shouldn't be in gets transferred to a computer somewhere in Arizona. That computer then scours the DMV records in your state to find your home address (the camera also snapped a picture of your license plate), and a few seconds later, prints neatly out on a traffic ticket bearing your name and address. The ticket then magically finds its way into an envelope, into your mailbox only to be greeted by your sigh of disgust when you see your mug behind the steering wheel.
It's at that point that you may resign yourself to paying the $75 dollar ticket. Not so fast there, bucko. There may be some other options for you.
Many red-light camera companies make a lot of money on those tickets, and the cities who use red light cameras don't make as much money unless they negotiate a more advantageous contract. Some citizens appeal to their local city and town councils to reconsider those contracts. Some also complain about the net result: while red-light cameras have been shown to reduce T-bone intersection traffic collisions, they tend to increase rear-end collisions.
Certainly the intersection collisions are on the average more dangerous, but statistically, there apparently are comparatively more rear-end collisions that may result in just as much, if not more monetary damage. Apocryphally there are likely fewer deaths and less severe personal injuries in rear-end collisions, however.
If your city or town uses red light cameras, you might want to check with the members of the local council to ensure that your city or town is getting its fair share of the revenue. In some instances, the red-light camera company is making a handsome profit by collecting all of the revenue from the tickets if, for example, your town fails to issue an artificial minimum number of tickets per month. No sense sending all that money to Arizona if you can keep most of it in your town.
On the other hand, why pay at all?
There's this little thing called the evidence code you may be able to use to your advantage. In California, like most other states, we have the evidentiary requirement that personal knoweldge is required for evidence to be admissible. There's also the burden of proof, which the prosecutor must meet. That means that the prosecutor must introduce evidence of the red light picture of you and your car in the middle of the intersection after you went through a red light. The court then has to admit the picture into evidence in order to convict you of going through a red light.
To admit a photograph into evidence, the prosecutor must have the person who took the photograph testify to that person's individual knowlege of the photograph to lay the foundation to admit the photograph into evidence. In other words, the person who took the photograph must testify that the camera was working properly, the computer that stored the photograph was working properly and correctly cross-referenced your license plate number against DMV records and that the car being driven was your car. The evidence also has to show that you were behind the wheel, that the light was red (in your direction) and that you were past the intersection limit line.
That's a lot of things one photograph has to show.
That person must then testify to her personal knowledge that the photograph in court is the same photograph taken by the camera, recorded on the computer, cross-referenced against DMV records, mailed to you, that the car in the photograph is registered to you, you were driving the car and you were past the limit line - all before the photograph in the prosecutor's hands can be admitted into evidence.
Unless the person from Arizona who operates the computer is nearby, that level of proof is hard to place before the judge. The correct objection to assert then is "Lack of Foundation, California Evidence Code section 402." If you make that objection and the judge understands it, then the photograph should not be admitted into evidence unless those criteria have been met. The prosecutor can attempt to introduce the photograph using Evidence Code sections 1550, et seq., but without someone to establish that the photograph is a business record, the photo might not come into evidence.
Plus, you've got chain-of-custody issues if the prosecutor tries to use someone locally to introduce the photo. How did it get from Arizona to whatever city/town you're in? Was it altered along the way? Without someone who can trace it from the camera to the courtroom, the photograph should not come into evidence.
Without the photograph, the red-light case against you should be dismissed and no one will get any revenue.
On the other hand, you could just stop for the red light and avoid all of this hassle.
Just a thought.