May It Please The Court
Quote of the Day - As one of your writers said, 'There are three kinds of lies: a small lie, a big lie and politics.
Lawyer 2 Lawyer Internet Radio Inspect the Possibility of an Automaker BailoutBailout or bankruptcy for the U.S. automakers to the tune of $25 billion? Please join my fellow Law. com blogger and co-host Bob Ambrogi as he welcomes experts Professor Eugene F. Fama, the Robert R. McCormick Distinguished Service Professor of Finance at the University of Chicago Booth School of Business, Attorney Andrew Z. Schwartz, head of the Bankruptcy and Restructuring Group at Foley Hoag LLP and Attorney Lisa C. Wood, Partner and Co-Chair of Securities and Corporate Disputes Practice at Foley Hoag LLP to discuss the economic and legal options and consequences.
Lawyer 2 Lawyer Internet Radio Talks to the Public - Defender, That Is
It takes a special kind of lawyer to be a public defender today. Case overload is just one issue causing seven Public Defender's offices across the country to refuse to take on new cases or sue to limit their workload. Please join me and my fellow Law.com blogger Bob Ambrogi as we welcome Bennett H. Brummer, Public Defender in the Eleventh Judicial Circuit of Florida in Miami-Dade County and David Carroll, Director of Research for the National Legal Aid & Defender Association (NLADA) to take a look at the state of the public defender system.
We discuss the common issues that public defenders are struggling with, the effect on defendants and what is being done to faciliate the process and put the quality back into public representation.
Lawyer 2 Lawyer Internet Radio Examines the FDA and Big Pharma
This week, the highly publicized case of Wyeth v. Levine came before the United States Supreme Court. The case involves Diana Levine, a musician who lost her arm to gangrene due to an IV push with the drug, Phenergen. Please join me and my fellow Law.com blogger and co-host, Bob Ambrogi, as we welcome Attorney Michael A. Ferrara, Jr. from the Ferrara Law firm and Attorney James Beck from the firm Dechert LLP and blogger for Drug and Device Law Blog, to discuss this big case. We will will look at Wyeth v. Levine, discuss the power of the FDA, federal pre-emption and what the upcoming ruling means for the future of Pharmaceutical companies and the FDA. Just click on the link below and give a listen.
What Is A John Roberts?
Other than the name of our current Supreme Court Chief Justice, the Encyclopaedia of Phrases and Orgins defines it as: "A large jug. In 1886, Sunday closing of public-houses (read: pubs) came into effect in Wales, mainly through the efforts of Mr. John Roberst, M.P. So, and outsized tankard evolved with, it was claimed, would hold sufficient beer to carry thirsty customers over from Saturday night until Monday morning."
Just goes to show you, there's almost always a work-around.
In Bankruptcy, You Must Have It And Bare It All Or Risk Dismissal
MIPTC occasionally finds itself in bankruptcy court, and I must say, this decision will give many consumers and business much to think about before going there. Let me cover the facts.
Marc Caneva owns several businesses, mobile home parks and even an airplane. In too much debt, he chose to file for Chapter 7 dissolution and discharge. While in BK court, he amended his bankruptcy schedules. Essentially, each one was less and less clear.
Finally, his last amendment said his interest in the businesses was unknown. In a courtroom examination of the status of his finances, Caneva admitted that he failed to keep records for his businesses.
To be painfully obvious, you must keep business financial records in order to obtain a discharge in bankruptcy. One of Caneva's creditors objected to the Court's ability to discharge his debts due to his lack of financial records. The Court denied Caneva's request for a discharge based on his lack of records, ruling that the court couldn't tell what to discharge, and he appealed.
The Bankruptcy Code allows discharges, but not if the debtor fails to preserve records "from which the debtor's financial condition or business transactions might be ascertained." Sufficient written evidence, as opposed to absolute completeness, must be presented.
Caneva argued he produced a substantial quantity of documents, but he admitted he did not keep records crucial to determine the extent of Caneva's interest in his businesses. Since his creditors were not able to accurately understand Caneva's financial condition, the court did not have to discharge his debts.
Spin up that computer, and open up an accounting program.
Voter Information For Employers
Employees are eligible for up to two hours of paid time off for the purpose of voting, when necessary. This benefit applies only if employees do not have sufficient time outside working hours to vote. The intent of the law is to provide an opportunity to vote to workers who would not be able to do so because of their jobs, and does not apply to the typical 9 - 5 employee.
Californa State law (California Elections Code Section 14001) requires employers to post a notice to employees advising them of provisions for taking paid leave for the purpose of voting in statewide elections. Employers must post the employee notice 10 days before a statewide election, but If you already have the complete state and federal poster set, this noitce will already be included in that set.
The employee notice must be posted either in the workplace or where it can be seen by employees as they enter or exit their place of work.
You can always encourage employees to register as absentee voters, which allows the employee to vote early and without the pressure of work and time, and givessufficient time to consider the many propositions before casting a vote.
Lawyer 2 Lawyer Internet Radio is Twitterpated
Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome experts, Brian Carter, keynote speaker and Director of Search Engine Marketing (PPC), SEO, and Social Media at Fuel Interactive and Heather M. Milligan, Director of Marketing at Barger & Wolen LLP. We explore Twitter, discuss why some lawyers are skeptical of Web 2.0. and take a look at how networking sites can be a marketing and business tool.
Five Chapters Down, Five To Go: Stay Tuned
Regular readers have been wondering about what's going on and why the large gaps of time between posts. Thank you to those who have written inquiring about how I'm doing. It's not that I haven't been writing - I have - it's just that my writing has been on a different page.
After How to Get Sued: an Instructional Guide, Kaplan Publishing asked for a second book, so I've been busy with tentatively-titled Bad Decisions? 10 Famous Cases That Changed History.
So, since I've been so wrapped up with putting the first five chapters in the hopper, I thought it would only be fair to pass along a preview of what's coming sometime early next year:
Expanded Chapter List
The Trial of Jesus - piecing together the most influential trial in history from five differing accounts, written with obvious biblical perspectives well after the 30 A.D. trial happened; we walk back in time to hear the trial testimony. Apart from the mystical, religious significance of the event, here's how a modern-day trial lawyer applies an unvarnished view of the legal procedures employed by High Priest Joseph Caiaphas and Roman Governor Pontius Pilate in their conviction of Jesus for blasphemy. Would his trial turn out differently today based on modern legal precedent and criminal procedure?
The Salem Witch trials - You can't really call them trials, with this kind of procedure, but has criminal procedure advanced much further? Consider that Miranda v. Arizona has been overruled by the Courts in just every aspect except by name, and look how these steps from 1692 aren't much different than today's criminal procedure, notably excepting the charge of witchcraft:
1. The afflicted person makes a complaint to the Magistrate about a suspected witch. The complaint is sometimes made through a third person.
2. The Magistrate issues a warrant for the arrest of the accused person.
3. The accused person is taken into custody and examined by two or more Magistrates. If, after listening to testimony, the Magistrate believes that the accused person is probably guilty, the accused is sent to jail for possible reexamination and to await trial.
4. The case is presented to the Grand Jury. Depositions relating to the guilt or innocence of the accused are entered into evidence.
5. If the accused is indicted by the Grand Jury, he or she is tried before the Court of Oyer and Terminer. A jury, instructed by the Court, decides the defendant's guilt.
6. The convicted defendant receives his or her sentence from the Court. In each case at Salem, the convicted defendant was sentenced to be hanged on a specified date.
7. The Sheriff and his deputies carry out the sentence of death on the specified date.
Rex v. Preston and Rex v. Weems, et al., the two Boston Massacre Trials of Captain Thomas Preston and eight other British redcoats - for the paltry sum of eighteen guineas, future-president-to-be John Adams, then a 34-year old lawyer in Boston, took on the unpopular defense of these almost surely-to-be-hung soldiers. In the 1770s, the colonies of what would later be known as the United States of America sought their freedom from England. These cases marked our first trial on an international stage. Founded on his precise questioning of some forty witnesses and with his eloquent argument mixing law, logic and politics, Adams argued self-defense.
He obtained acquittals of Preston and six of the eight soldiers reasoning that a "Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches .... As the Evidence was, the Verdict of the Jury was exactly right." Only the two soldiers who fired into the crowd were found guilty. Would our country have gained the respect of the other superpowers of colonial times had Adams not convinced the jury to disregard passion and decide on the facts? Did this unpopular defense ruin Adams' law practice as predicted? How would the ACLU have handled this case?
The Tipping Points for the Civil War and its Aftermath - Beyond the friction between North and South states, the court system played a part in the battle of brother against brother. In 1857, the court weighed in on the question of human bondage with the Dred Scott decision, followed shortly by the 1859 trial of abolitionist John Brown in Virginia who sought to free the slaves. Even after the Civil War, our country continued to call on the courts to resolve racial differences. In 1896, the Supreme Court weighed in once again on the question of race in Plessy v. Ferguson, creating the incongruous racial segregation doctrine of "separate but equal" facilities for "colored and whites." That decision would remain the law of the land for nearly sixty years until overruled in the 1954 Supreme Court decision in Brown v. Board of Education.
Dred Scott brought the question of slavery to the United States Supreme Court, which for only the second time in history overruled an act of Congress (the first was Marbury v. Madison, which established the power of the Supreme Court to rule on acts of Congress). In Scott, the Supreme Court ruled that neither "a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves" nor his descendants could be citizens of the United States. Despite the Court's recognition that it did not have jurisdiction over the case and slaves could not sue in court, it somehow managed to declare unconstitutional the Missouri Compromise. The Court ruled that Congress had no authority to prohibit slavery in federal territories and allowed new territories to join the union as slave states. Later, the Thirteenth Amendment to the United States Constitution in 1865, prohibiting slavery, and the Fourteenth Amendment in 1868, guaranteeing full rights and citizenship regardless of race, effectively overruled the Dred Scott decision.
Brown's trial should have been no more than a blip in the history books, but Brown turned out to be larger than life. Partly due to his own flawed zealousness and several luminaries around him, including Ralph Waldo Emerson and Henry David Thoreau, John Brown's sentence of death for treason, inciting rebellion and murder became a lightning rod that galvanized the North into action against the South and started us on the march toward the war between brothers. The courtroom trial started out as a comical farce attended by 600 curious and boisterous court-watchers, but ended with sullen observers wondering if they were doing the right thing.
Slavery came to an end in large part to events started by Brown's actions, but also fostered some unintended consequences. Watching the execution was a young Virginia Military Institute cadet, John Wilkes Booth, who later became infamous in his own right. You may have read Lincoln's Gettysburg Address, but have you heard Brown's response to the verdict? Brown's closing remarks have been called "one of the most memorable courtroom speeches" and "one of the two greatest American speeches." After Brown spoke in the pre-Civil war courtroom in Virginia, only one spectator clapped when the judge sentenced Brown to death.
Plessy v. Ferguson
In mid-1892, as part of an intentional test, Homer Plessy climbed aboard a whites-only passenger car of the East Louisiana Railroad contrary to the laws of the time. According to Louisiana law, Plessy was "colored," even though he was mostly white. Plessy refused to leave the white car and move to the colored car, so railroad officials had him arrested and jailed. In Homer Adolph Plessy v. The State of Louisiana, he argued the Thirteenth and Fourteenth Amendments to the Constitution prohibited the railroad from making these distinctions. Judge John Howard Ferguson ignored federal law and ruled that Louisiana had the right to regulate railroad companies as long as they operated within state boundaries. The Supreme Court of Louisiana upheld Judge Ferguson's ruling, and Plessy filed a writ of certiorari to the United States Supreme Court in 1896, where the Court likewise upheld Ferguson's decision and the Court created the "separate but equal" doctrine as a work-around to the Bill of Rights.
The OK Corral Shootout Trial of Wyatt Earp and Doc Holliday - The contrast of a lawless, wild and untamed west stands starkly against the 1881 trial of four lawmen, brothers Wyatt, Virgil and Morgan Earp and their somewhat questionably deputized fellow U.S. Marshall Doc Holliday for killing three men a the OK Corral. The dead men, Billy Clanton and brothers Frank and Tom McLaury, had been in a running range war with the Earps that boiled over into the dusty back streets of a soon-to-be-ghost town as the silver rush went bust. The backdrop for this famous, 30-second gun battle was the town of Tombstone, Arizona that had two newspapers, a full-swing silver mining rush followed by an equally full-swing red-light district, innumerable gambling operations and western saloons, all of which made for a colorful story.
The Earps and Holliday stood trial for thirty days during which they saw their bail revoked and themselves locked in jail, defended by a former US Senator. The trial attracted other not-so-luminaries including Billy the Kid, who testified against the Earps and Holliday, and perhaps the linchpin in the downfall of the prosecution's case, Ike Clanton. The trial also included testimony from Morgan Earp on his deathbed in his home, with the lawyers, judge and parties listening.
This trial has spawned countless articles, books, movies and comes alive as lawmen brought the lawless to their knees in the formative years of our country settlement of the west.
The Three Trials of Oscar Wilde - The Old Bailey in London forms the basis for these events, drawing together literary society of the late 1800's and Victorian morality toward homosexuality and "Gross Indecency." Swirl in the real Marquis of Queensbury and his son's involvement, blackmail, sex, witty repartee' between high-powered players, add some political intrigue, surprising twists, and issues of art and morality, and we've got a chance to see how the past influences present-day morality and tolerances. Does Wilde follow George Bernard Shaw's advice to flee the land? Was the danger of getting caught half the excitement for Wilde?
The Black Sox Trial - The nine players of the Chicago White Sox who threw the 1919 World Series trial forever changed the game of baseball, but why? Even though the boys of summer didn't take the stand in their defense, they were found not guilty by a jury. Not to be dissuaded, however, the Commissioner of baseball struck the "Eight Men Out" from the roster of baseball forever.
You may think you know the facts and the outcome, but what of the courtroom intrigue? How did the prosecution's objections defeat the ballplayer's attempts to introduce evidence? How were their confessions extracted? Was Shoeless Joe Jackson in on the fix? How did Club manager Comiskey's greed factor into mix?
State v. Scopes ("The Monkey Trial") - You couldn't ask for a better lineup of players. On the side of science, we have 70-year-old Clarence Darrow for the defense seeking to uphold the evolution theory. Next, there's William Jennings Bryan prosecuting biology teacher John Scopes' violation of the anti-evolution statute in Tennessee. Charles Darwin was absent from the proceedings, but squarely in the middle.
Did we descend from apes? Could we teach our children this theory of evolution, or were public schools required to teach the Adam and Eve version of events? After an almost comical trial where he put Bryan on the stand in 1925, Darrow asked the jury for a verdict of guilty so Scopes could appeal to the Tennessee Supreme Court. Bryan technically won the case, but lost it when the Tennessee Supreme Court reversed the verdict and dismissed the case, and virtually all states refused to enact such statutes. Here's what goes wrong when you try to plan court cases.
The Lindy Chamberlain trial - Late in August 1980, a mother's cry rose from a quiet, inky-black dark night at a campsite near Australia's famous Ayer's Rock, "My God, my God, the dingo's got my baby!" Mother Lindy Chamberlain was tried while the nation found itself arguing over her role in ten-week-old baby Azaria's death. Convicted to almost universal applause across the continent, Lindy was sentenced to life in prison and her co-defendant, husband Michael's sentence was suspended.
Some six years later during search around the base of Ayer's Rock in an investigation of a hiker's death, the police found Azaria's jacket, stained with the baby's blood and mixed with dingo saliva. With that evidence, Lindy was released from jail and awarded $1.3 million Australia dollars for wrongful imprisonment. How did the investigation and the science go so wrong?
The McMartin Pre-school Trial - The pendulum of child abuse had swung too far to one side, and in 1987, the McMartin pre-school faculty found themselves in the sights of Judy Johnson. She was a woman later recognized as a paranoid schizophrenic, but who initially appeared as concerned mother who claimed child abuse of a two-and-one-half year old son, and later alleged the pre-school faculty performed satanic rituals.
Despite no medical signs of abuse and the boy's inability to identify the alleged abuser, Manhattan Beach, California police fueled the fire with apparently unfounded letters to other parents that started a "snowball of suspicion rolling." Seven years and $15 million later, the state had no convictions, but had succeeded in emotionally damaging hundreds of children and ruining the reputations of four preschool teachers. How did the so-called expert psychologists and doctors go so wrong? Did the media fan the fire with headlines without questioning the prosecutors?
Bonus Chapter - Maybe not history-making, but worth a look...
The OJ Case - America's fascination with a fallen football-star-turned-sometime-sports-TV-celebrity transforms into an international obsession highlighting the cracks and ugly underbelly of our judicial system. We'll look at:
1. The Chase
2. The Trial and the dream team
3. The Kids
4. The Civil Case
5. Our judgment - can we trust the system?Apart from the farce of the 1995 trial (was it really more than a decade ago?), the TV rating system readjusted after 133 days of televised courtroom testimony turned viewers into Simpson trial fanatics and was dubbed the "Super Bowl of murder trials." After some 95 million viewers tuned in to watch a slow police chase of a white Ford Bronco, more than 91 percent of those watching television on the day the jury returned its verdict were watching the Simpson trial. Called "a great trash novel come to life," it held sway over those who would never even pick up a National Enquirer.