May It Please The Court
Quote of the Day - Here cometh April again, and as far as I can see the world hath more fools in it than ever.
MIPTC Announces J. Craig Williams's New Book: How To Get Sued
In case you couldn't figure it out on your own and were looking for a roadmap - here it is, just in time for summer. That's right, Kaplan Publishing starts selling my new book, How to Get Sued, on June 3, 2008. You can preorder it on Amazon now, or go to major booksellers in June, including Barnes & Noble and Borders.
In the meantime, please saunter on over and visit the book's website.
Given today's date, you might be a bit wary, but this announcement is no April Fool's joke; this is the real bananna. The color almost matches, too.
Tightly Regulated Crop Dusters Fly Into Fog Of Regulation
Having lived on a farm for a bit, I've seen crop dusters and gotten to know the pilots who fly them. It's a dangerous business. Not only are the pilots are bulletproof, flying and cavorting sometimes just feet from the ground, but so are the planes, which used to held together with bubble gum and baling twine, but are now highly specialized machines. They take off low, fly even lower and then dodge fences and trees at the end of the fields.
It's like watching a carefully choreographed ballet, especially when the crop dusters fly in tandem, laying down pesticides on the field.
The work they perform is essential for a successful harvest, and frequently one of the best ways to dust a crop. Otherwise, you've got to own a fancy piece of equipment, understand how to mix and apply the chemicals and take a lot more time. Crop dusting is comparatively quick and dirty.
It's the dirty part, however, that can get you into trouble as a pilot, especially on a slightly windy day. Take Patterson Flying Service, for example, who got fined $5,000 after "enveloping" Elena Ruiz in a fog of pesticides. Here's how the case reads, according to the Daily Journal summary: Patterson applied "Dimethoate that drifted onto Elena Ruiz's property. Based on Ruiz's testimony, her medical records, and laboratory analyses of tree leaves in her backyard, the drift from Patterson's aerial application was substantial. Ruiz heard the plane and was enveloped by fog from a crop duster. She suffered all the symptoms of one exposed to pesticides. Doctors treated her with atropine, listed on the Dimethoate label as an antidote to the pesticide. Laboratory results from the leaf samples also showed a substantial pesticide residue six days after Patterson's application."
At that point, again according to the Daily Journal (slightly paraphrased), "the County Agricultural Commissioner fined Patterson $5,000 for failing to follow the label directions to prevent off-site movement of the pesticide, causing a health hazard. Patterson appealed the fine to the Department of Pesticide Regulation Director, who upheld the penalty. The trial court denied relief, despite Patterson's arguments that substantial evidence did not support the commissioner's findings."
"California Food and Agriculture Code section 12973 prohibits any use of pesticide in conflict with directions in the registered label. Dimethoate's label proscribed application of the product in a way that would contact workers or other persons, either directly, or "through drift." There was substantial evidence to support the commissioner's finding of substantial drift from the target site onto Ruiz's property and person. Because this conflicted with the proscription in Dimethoate's labeling, Patterson was properly fined," and the Court properly affirmed the Commissioner's fine.
No more flying under the radar.
Rah, Rah, Sis, Boom, Bah; Cheerleading Is Not A Contact Sport
It took the Wisconsin Court of Appeals to weigh in on this one. Brittany Noffke is a ninth-grader at Holmen High School where she's a cheerleader. Kevin Brakke is also on the squad, and he was Brittany's spotter during practice while she was working on a stunt. Unfortunately, Brittany fell and severely injured her head, which Kevin apparently failed to prevent. The school did not have mats down during the practice and Brittany landed on a tile floor.
She sued the school and Kevin for her injuries.
The Court was called on to determine whether cheerleading is a contact sport. The court said that because there were no "opponents" directly involved with contact in the sport of cheerleading, it wasn't considered a contact sport. Now I'm not admitted to practice law in Wisconsin, so I most assuredly don't understand the law there, but when I've seen cheerleaders - especially male and female cheerleaders working together - it looks like a contact sport to me.
Maybe not as rough as football, but there's definitely contact going on there. After all, the guys are usually holding up the girls, aren't they?
The issue of whether it's a contact sport matters because there's a statute in Wisconsin that prevents participants in contact sports for suing one another for injuries resulting, of course, from the contact.
So, when the Court ruled that cheerleading isn't a contact sport, they were allowing Brittany's case to proceed against Kevin. They didn't, however, allow Brittany to sue the school. It's apparently immune from liability under another Wisconsin statute.
Don't ask me. I practice law in California, where practically everything's a contact sport.
Lawyer 2 Lawyer Internet Radio Trolls the Patent Blogs
What are the implications of a blogger writing about someone anonymously? Last month, the burning question on everyone's mind in the patent world was finally answered when the identity of the author of the anonymous, Patent Troll Tracker Blog, was revealed as Rick Frenkel, an IP Director and in-house patent attorney at Cisco Systems. Attorney Frenkel was invited to participate in this podcast, but declined based on the advice of his attorney.
Please join me as I get two different perspectives from the experts. In the first segment, Craig welcomes Attorney Raymond Niro Sr., the attorney who was once a target of Frenkel's blog. In our second segment, Craig speaks with the popular patent blogger, Dennis Crouch from Patently-O, to get his perspective on the Troll Tracker and the dangers of blogging anonymously. You can download the podcast here or click on the link below.
Herb Peterson, Dead At 89
MIPTC typically doesn't write obituaries, this one deserves a moment of silence.
Herb Peterson, the inventor of McDonald's Egg McMuffin died. He invented the breakfast sandwich in 1972. While not a gourmand, he is certainly a hero of the company, even though he worked for McDonald's advertising agency at the time. It's my favorite item on the menu.
Just goes to show you, not all good ideas come from within.
Pay First, Litigate Later – Even If You Already Won Once
Who Made Up These Rules? Oh, Right – It's The Government
Litigants would go through the roof if they were required to first pay the claim of the opposing party before even stepping on to the dance floor in the Courthouse. But, that's the rule when the government sues you: pay the state before you barely find out who's on your dance card.
Even if you've already beat back the government's claims against you beforehand. I kid you not.
Let's get to the facts here: California Logistics is a delivery company. It hires drivers on an ad hoc basis to deliver goods belonging to others. It has classified these drivers as independent contractors. Several times before both administrative and court proceedings, California Logistics beat the state's challenges against this classification, where the state unsuccessfully tried to classify the drivers as employees.
Not satisfied with losing, the Employment Development Department levied a $1.2 million assessment against California Logistics, who once again employed its attorneys and said, "Not again? We've won this issue before."
And it has. Several times. The EDD, however, is not persuaded it should have lost and challenged those rulings again. Don't believe it? Let me explain.
There are two doctrines in the law that we're all familiar with: res judicata and collateral estoppel. Ok, you may not be familiar with the Latin term or the procedural term, but as I said before, they mean "I already won this issue in prior proceedings, I shouldn't have to fight about it again." And that meaning makes perfect sense in most cases.
Except when you're talking about a provision in the California Constitution, the supreme law of the land. At least in California, that is. Here's how it works: the Latin and procedural concepts are common law rules. In the hierarchy of rules, those two concepts are at the bottom of the legal ladder, and the state's Constitution is at the top.
So, when there's a conflict between the two, the Constitution's requirement to pay first, litigate later wins. Here, the Constitutional requirement is in Section 32, which relates to taxes. You know, the funds the government needs to run.
The requirement makes sense in the abstract. If we could all challenge our obligations to pay taxes before paying them, then the state would grind to a halt without money.
The Court looked at it this way, citing to the precedent of a prior challenge brought by several utility companies in support of the EDD's position: "There, three public utility companies filed an action seeking to compel the State Board of Equalization to adjust the assessment of their real property in accordance with a recently enacted constitutional provision (Proposition 13). The utilities argued that to bar their suit under section 32 would deny them an adequate judicial remedy because they would be forced to litigate in more than 50 counties in order to recover their alleged overpayments. The [state's supreme] court declined to recognize an ' "inadequate remedy at law" ' exception to section 32. The court cited the policies underlying section 32 and stressed that section 32 ' "means what it says." ' That has not changed. [citations omitted.]"
Call me silly, but it seems to this writer if the Constitutional issue has already been resolved, California Logistics should not be required to pay the assessment first before litigating the same thing again and again and again. A court higher than me will have to straighten out this one.
Not So Friendly Skies: Second Circuit Strikes Down New York's Airline Passenger Bill Of Rights
Citing federal preemption laws, the Second Circuit Court of Appeals struck down New York's attempt to restore some friendliness to the skies. Reacting after two ugly situations where airline passengers were stuck on the tarmac in New York without water, food or toilet facilities for up to 10 hours, the New York legislature passed the Airline Passenger's Bill of Rights. Both incidents occurred at Kennedy International Airport, the second after passengers were stranded on the ground during an ice storm.
The Second Circuit said such laws were solely within the province of the United States Congress and the Federal Aviation Administration. I'd add here that the airlines themselves could have employed something called "customer service" to avoid the fiasco, but I'd be repeating myself.
According to Pete Yost's Associated Press article, "A recent federal report showed that about 24 percent of flights nationally arrived late in the first 10 months of last year, which was the industry's second-worst performance record since comparable data began being collected in 1995. Kennedy airport had the third-worst on-time arrival record of any major U.S. airport through October, behind the New York area's other two major airports, LaGuardia and Newark, according to the report."
Maybe it's time the politicians got off the campaign trail and back into the Senate to pass some laws?
Lawyer 2 Lawyer Internet Radio Reacts to Spitzer's Big Oops
Considered a hero to many in the legal community for fighting for the little guy, Eliot Spitzer, the now former Governor of NY, became tangled up in a prostitution ring that led him to resign from office.
Please join me and my fellow Law.com blogger and co-host Robert Ambrogi as we turn to the experts, David Frank from Massachusetts Lawyers Weekly, Attorney Harvey Silverglate, criminal defense and civil liberties lawyer and Dan Slater, lead writer for The Wall Street Journal's Law Blog, to discuss the rise and fall of Eliot Spitzer.
We discuss this scandal, take a look at Spitzer's work as Attorney General, explore the potential criminal charges that he faces and get reaction from the legal community. You can download the podcast here or just click on the link below.