May It Please The Court
Quote of the Day - If we can ''boondoggle'' ourselves out of this depression, that word is going to be enshrined in the hearts of the American people for years to come.
Lawyer 2 Lawyer Internet Radio Takes A Trip For Some Serious Fun In The Sun
Having trouble getting excited about fulfilling your Continuing Legal Education requirements? Well, that's all changed as lawyers are now signing up for CLE travel programs taking them to different parts of the world where beautiful scenery and CLE seminars can both be found.
On this week's Lawyer2Lawyer, we look at these CLE Programs in-depth, highlighting the pros and cons of the trips, the physicality of taking the attorney out of the office or offline, and give you a first-hand account of the various destinations offered. Please join me and my fellow Law.com blogger and co-host Robert Ambrogi as we once again call on the experts: Attorney Jamie Duarte, from Duarte & Associates and Maryann McCool, Director of CLE Abroad, to discuss this fun alternative.
Electronic Case Filing Department of Redundancy Deparment
Under orders from the United States District Court for the Central District of California, I clicked on the URL for the eight modules of training on the Court's CM/ECF (Case Management / Electronic Case Filing system), and promptly went brain-dead. Sure, I had to complete the training in order to get the Court to issue a user name and password in order to electronically file documents even though others in the firm already have them, but after the two-and-one-half-hour mind-numbing and overly repetitive online lecture and allegedly "interactive tutorial," I'm left with one question:
According to the General Order and the Judge's Standing Order, I must still (within three days of the e-filing) physically file with the Court a "courtesy" copy of the document I just e-filed with the Court, complete with the cover page showing that I properly e-filed the document.
Just reread that last paragraph again. That's right. Now I get to file the same thing twice; three times if you count the requirement to also e-file the [Proposed] Order directly with the judge's chambers.
My head hurts, and now that I think about it, I actually have two questions.
The system has a 4.5 megabyte top-end limitation on the size of any file submitted through the CM/ECF system.
No. They're not kidding. More than that and you have to figure out how to divide the file into smaller byte-sized files to upload below the 4.5 meg limitation.
That limitation is about the size of a scanned small coloring book, which probably isn't saying much for the briefs being submitted, but come on, this is the United States government we're talking about. 4.5 megs? Our small-firm e-mail server can handle 50 meg files coming and going, and we've only got six attorneys. Certainly the government can afford a computer system that can handle big files. There are probably 30,000 attorneys in the Central District, many of whom file those ten-pound Motions for Summary Judgment.
We do too, in fact. I looked at one of the last ones we filed before the CM/ECF system went into play and just one of the Declarations was over 48 megs. That's uploading 11 separate files for just one document out of something that's probably got another 10 paper documents before it's finally said and done, not counting the dividing that will have to go on to come under the 4.5 meg limitation.
Just so you have this straight once you get done with the training, the Court hasn't produced a manual, but they do have a Help desk that's open from 10 a.m. to 4 p.m., except Court holidays; heaven help you then.
Never fear, though. One of our own has come to our rescue. Santa Ana Attorney Martin Anderson created this manual after he banged his head into the wall for hours trying to figure out how the system doesn't work. Click on the link immediately above to download it and save your sanity.
One more thing: you can't e-file complaints or other "case-initiating" documents. You still have to bring those to the court the old-fashinoned way.
On paper. So much for technology.
What Do You Mean? We Didn't Know That! How Were We Supposed To Know?
I read. Maybe I read a lot. In fact, when asked how bad my eyesight is from all my reading, I've joked that my glasses are so thick, I can't wear contacts because I wouldn't be able to blink my eyes. Yes, I wear glasses - or in most cases contacts to satisfy my vanity. I read so much in law school that in just two years, my eyesight went from 20/200 to 20/700. I'm practically blind without glasses, which means if the text is about six inches or more away from my eyes, I can't read it.
It's so bad that I now need reading glasses on top of my contacts. I can't wait until they come out with a functional pair of bifocal contacts.
I read for fun, for education and for my job. Most of all, I read because I enjoy learning. One of my favorite reference books is The Dictionary of Cultural Literacy. It's a great book because it provides context to our world when we all use shorthand to describe things.
Take, for example, referring to a pre-teen woman as "Lolita." Let me give the punch line away first. "Lolita" is a 1955 novel by Vladimir Nabokov. In it, the narrator, Humbert Humbert becomes sexually involved with his 12-year-old stepdaughter, Delores Haze. He was attracted by the sexually promiscuous girl, sometimes referred to as a "nymphette," and the book became a classic. It was made into a film twice, once in 1962 by Stanley Kubrick starring James Mason as Humbert Humbert, and again in 1997 by Adrian Lyne, starring Jeremy Irons.
So, when Woolworth's offered beds for small girls named the "Lolita Midsleeper Combi," you have to wonder whether there was a message or just it was because someone wasn't paying attention. The "Lolita" bed offered for sale in the UK was advertised as "a whitewashed wooden bed with pull-out desk and cupboard intended for girls aged about six," according to this Reuters report. Reuters continues, "'What seems to have happened is the staff who run the website had never heard of Lolita, and to be honest no one else here had either,' a spokesman told British newspapers."
Right. Furious parents complained and forced Woolworth's to look up "Lolita" on Wikipedia, where the company learned what the term really meant, and pull the bed from the shelves, so to speak.
I'm betting the folks at Woolworth's don't wear thick glasses.
Maryland's Do Not Deliver Pending Legislation Would Apply Junk Mail Filter To Your Driveway
Why Not Also In Our Mailboxes? Why Not Federal Legislation?
Maryland is considering legislation that would ban free newspapers from being delivered to unwanted driveways. You can probably tell from the sub-headline, I'm against the delivery of unwanted newspapers. Try as I might, a free newspaper in our area, the Irvine World News, continually gets delivered to my driveway despite my efforts to the contrary.
According to this Newsweek article by Reporter Kristen Wyatt, the legal issues might preclude the legislation. The magazine notes, "The bill could prove a legal morass, said T. Barton Carter, a media law expert at Boston University. It's uncertain how valuable a 'Do Not Call' analogy is, he said. 'Usually, when you're talking about print media and just delivering it to the outside, that's not seen as intrusive as calls. So, it's not clear it would survive a similar First Amendment analysis,' Carter said."
While this argument may not be clear, it overlooks the balancing test used in a First Amendment analysis. As part of this Constitutional analysis, Maryland must demonstrate a compelling state interest to overcome the preference for free speech, and instead impose only reasonable time, place and manner restrictions. What possible compelling state interest could we assert?
How about littering? Trespass? Waste?
And what about those reasonable time, place and manner restrictions? Well, let's see whether they even apply. By prohibiting the delivery of free newspapers, are we prohibiting speech? Not really. We're just limiting its dissemination to willing readers, and prohibiting its dissemination to unwilling listeners.
Think about it from the soapbox or pamphleteer's perspective. We can't stop the woman from standing on the soapbox in a public place and speaking her mind. We can, however, prohibit her from mounting loudspeakers on that soapbox and pushing it through a residential neighborhood. While we may not be able to limit the pamphleteer from handing out her pamphlets, which ultimately litter the countryside, we can punish the pamphleteer for littering. Yes, in case you're wondering, those fact patterns are actual Supreme Court First Amendment cases, simplified greatly, but still true.
Here's the actual, three-part test to determine whether the restrictions are reasonable: 1. Are the restrictions justified without reference to the content of the regulated speech? 2. Are the restrictions narrowly tailored to serve a significant governmental interest? 3. Do the restrictions leave open ample alternative channels for communication of the information?
Admittedly in Maryland's statute, it's probably not content neutral since it applies only to commercial newspapers. Now on the other hand, if the legislature would prohibit the delivery of any unwanted material, then it would likely pass this first prong of the test. That limitation might put the U.S. Postal Service out of business. Then again, that result may not be a bad thing.
The prohibition on the free delivery of newspapers is likely not narrowly tailored to prevent littering. There are many other sources of litter beyond free newspapers, so in order for the legislation to be effective, everything free would be banned, including door hangers and the like, together with coupons and perhaps even free samples whose wrapping might end up on the street. Not a likely eventuality.
Finally, while alternative channels of communication may be open - such as newspaper racks and heaven help us, subscriptions, there's really only one way to distribute a free newspaper, and that's to put it in yours and my driveways.
Until we pass some workable legislation such as a national "Do not deliver" list that allows us to stop delivery of paper that passes our property lines except perhaps real, non-junk mail.
Employers Can Fire Employees Even If They Have A Note From Their Doctor To Use Marijuana
California voters passed the Compassionate Use Act of 1996, which was enacted as California Health & Safety Code § 11362.5. Enough Californians voted to pass this Act (a.k.a. Proposition 215) in 1996.
The statute gives a person who uses marijuana for medical purposes on a physician's recommendation a defense to certain state criminal charges involving the drug, including possession. The same, however, is not true under federal law. Users of marijuana can be convicted under federal law if caught.
But what of the drug-free workplace? Until Thursday, employers have wondered how to handle an employee who has permission to use marijuana from a doctor under the Compassionate Use Act. As reported in this Washington Post article, "'What are they supposed to do?' said Deborah La Fetra of the Pacific Legal Foundation, which filed a brief supporting the company. 'Employers are held liable all the time when drunk or stoned employees cause trouble, either in the workplace or driving home. That's one of the reasons why the drug-free workplace is so important.'"
Now, employers know. An employee who tests positive for drugs, even with a doctor's note, can be fired. The California Supreme Court decided Ross v. RagingWire Telecommunications, and approved the company's termination of Ross, who had tested positive for use of marijuana. Ross was permitted to use marijuana under this state's laws to treat chronic pain. The Court ruled, however, "Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees."
Ross had alleged, which the Court procedurally deemed as true to rule on this case, that he was able to satisfactorily perform the functions of his job without complaint by his supervisor. According to the opinion, "Ross suffers from strain and muscle spasms in his back as a result of injuries he sustained while serving in the United States Air Force. Because of his condition, [Ross] is a qualified individual with a disability under the FEHA and receives governmental disability benefits. In September 1999, after failing to obtain relief from pain through other medications, [Ross] began to use marijuana on his physician's recommendation pursuant to the Compassionate Use Act."
Then, RagingWire offered Ross a job as lead systems administrator, but required first that he take a drug test. Ross disclosed to the human relations department that he was authorized to use marijuana under the Compassionate Use, and would likely test positive. RagingWire confirmed the marijuana prescription with his doctor. He actually took the blood test, and tested positive for drug use. The Board of Directors of the company met, and voted to fire the employee. Ross then sued.
Ross alleged RagingWire violated the FEHA by discharging him by failing to make reasonable accommodation for, his disability. Ross also alleged the Company terminated his employment wrongfully, in violation of public policy.
The Supreme Court disagreed, and struck Ross' complaint against RagingWire.
Lawyer 2 Lawyer Internet Radio Steps in to the Virtual Law Office
The emergence of virtual law firms came at the dawn of the internet and in recent years, the increased popularity of virtual firms has proven that the law is in fact changing. On Lawyer2Lawyer, we will take a look at what goes on behind the scenes of a virtual law firm, the advantages and disadvantages of virtual law, and why many lawyers are trading in the traditional firm for a virtual one.
Please join me and my fellow Law.com blogger and co-host Robert Ambrogi as we virtually call on the experts: Larry Bodine, business development consultant, Attorney Wyatt Durrette, from the XDL Group and Mark Harris, CEO of Axiom Legal, to discuss the "future of law."
Business, Shipper and Common Carrier Payment Dispute Leaves Business Liable
When a business ships its goods with a common carrier, it remains liable to pay the carrier even if it paid the arranger/broker for the shipment. In this case, National Logistics Company arranged for Oak Harbor Freight Lines Inc., a licensed motor carrier, to move freight for Sears, Roebuck & Company.
Sears paid its broker, National Logistics, for all of the invoices it submitted. This arrangment lasted for 10 years without any problem.
At that point, Oak learned that Sears didn't want to use National Logistics as its broker. Unfortunately, National Logistics hadn't paid Oak Harbor Freight Lines everything Oak was owed for carrying Sears' freight. Oak was owed more than $400,000.
National Logistics told Oak to get its money from Sears.
In a classic turnaround of "it's not my problem," Sears told Oak Harbor Freight to get its payment from National Logistics. And not without good reason, since Sears had already paid National over $200,000 toward Oak's $400,000 in outstanding freight charges.
Not surprisingly, Oak sued National Logistics and Sears.
Here's the Ninth Circuit's ruling in this case out of Washington: Sears undertook no actions to limits its liability. Sears could have elected to pay Oak directly, but instead assumed the risk that National Logistics would not make payment to Oak. Equitable estoppel does not bar Oak's recovery of freight charges from Sears, notwithstanding Sears' payment of a portion of those charges to National Logistics.If you're a business that needs to ship goods, how do you avoid this problem? Require a bond from the broker. You can require the amount of the bond to be sufficiently high enough to cover the highest amount of the invoices.
Does Taller, Faster, Longer, Steeper Equal Better? Can You Be More Dead?
Recently there's been a trend in sports to be more extreme: records broken for taller, faster longer, steeper and just a hair more whatever than last year or the last race. The consequences, apart from steroid use and more disabling injuries, is death.
Death. That record is final.
Don't get me wrong here - I've participated in some of those sports (and lived to write about it) and I'm as big a sports fan as anybody. I've been down to 750 feet in a homemade submarine in Honduras. I've skied the Sudan Couloir on Blackcomb, a half-mile, ungroomed 45 degree slope that starts out inverted and ends at speeds approaching Mach 5 (at least that's what it feels like). But in each of those sports, there are some things I won't do.
I won't violate the recreational 130 foot limit for diving. I won't catch air off cliffs while skiing. I don't ski off-piste into avalanche territory. I won't ride my Harley without a helmet (or my bicycle, for that matter).
In each of those sports, there are people who are better than me. There are tech divers who've been down to the Andrea Doria at 190 feet, a wreck covered with fishing lines, fast currents and heavy sediment obscuring visibility. There are also divers who are still trapped down there, and fourteen have died in all. There are much better skiers than me, who star regularly in ski films and are absolutely spectacular skiers. There are also skiers who, like Billy Poole, died performing for those movies or for just the thrill of it. There a Harley riders who can perform standing up in formation while riding their bikes, and many who have died from injuries sustained while riding without a helmet.
I'm simply not that good, but I am also alive to tell about it. There's a lesson here, and I hope those that are into these extreme sports learn from this last lesson of 28-year old Billy Poole's death (see last link). If you are one or know someone who is, then shorter, slower, more gradual and calmer may save a life. You can be a winner in other ways.
Other questions abound, however. Do the sponsors have liability? Do the filmmakers have liability? Did the participant sign a waiver? Even if the participant signed a waiver, is it valid - was it knowing and voluntary?
As I've written before, the legal doctrine of assumption of the risk likely bars any recovery for participants who are injured or died. The better question to ask, however, is whether it's worth it?