May It Please The Court
Quote of the Day - God bless the roots! Body and soul are one.
Who Owns The World?
Forget Viagra. Try Maca Root In Moonshine To Increase Your Libido.
In Peru, indigenous Quechua Indians have for hundreds of years used Maca root to increase the flow of oxygen to blood, largely to deal with the lack of oxygen at their high altitudes. The root, especially when certain elements are extracted in alcohol (moonshine), produce the "side effect" of increasing libido due to the increased blood flow and oxygen.
Given the runaway success of Viagra (if measured only by the number of emails that flood the Internet), you can understand why one U.S.-based company was more than happy to "discover" the root's propensities. That company, PureWorld Botanicals in South Hackensack, NJ, quickly patented the derivative product. That patent, however, flies in the face of the 1192 Convention on Biological Diversity, developed at the Earth Summit in Brazil. That Convention entitles nations to a share of the profits from substances yielded by their flora and fauna, obviously excluding Peru here given PureWorld's patent. Some 188 countries ratified the Convention. Notably absent is the United States as a signatory.
This Associated Press article (free registration required) notes that a "2005 U.N. University report concluded that 62 percent of all cancer drugs were created from bioprospecting discoveries." For example, "the venom of a deadly sea snail found off the coast of the Philippines led Elan Pharmaceuticals Inc. to develop the painkiller Prialt, which U.S. regulators approved in 2004. The key ingredient in the breast cancer drug Taxol owned by Bristol-Myers Squibb Co. is taken from the bark of the yew tree, and Wyeth's kidney transplant drug Rapamune comes from Easter Island soil," according to the article's author, Rick Veccio. Examples of other substances abound, from penicillin to quinine.
Interestingly, quinine comes from the Cinchona tree, which is featured prominently on the Peruvian flag. You may remember that quinine was developed from the bark of the Cinchona tree, which was taken back to Europe in 1630 by Jesuit priests and largely cured malaria. The tree remains on Peru's flag as a reminder that it did not share in the wealth created from this "discovery."
Peru is now trying to follow U.S. patent law and overturn the issuance of PureWorld's patent by claiming that patenting the company's alcohol extraction process is barred by the prior art of the moonshine derivation practiced by Quechua Indians for centuries. They charge that U.S. bioprospecting robs them of the rewards of their natural resources. Others, according to the AP article, claim " 'PureWorld, which did all of this work, found compounds that nobody knew existed before,' said [Chris] Kilham, a professor of ethnobotany at the University of Massachusetts at Amherst."
For their part, the Peruvians believe "the root is nature's bounty and belongs to everyone and to no one in particular."
Relax. California Shelved Its E-Discovery Procedural Rule Changes.
Federal Courts, However, Have Enacted The New Rules
MIPTC may be out there on the cutting edge of technology, but California lawyers needn't worry about new E-discovery rules unless they're practicing in federal court, which adopted new Federal Rules of Civil Procedure on E-discovery on December 1, 2006, now over a month ago.
California, however, proposed new E-discovery rules last summer, and then shelved them, according to the Judicial Council, despite what one lawyer thinks. Although Richard Siebolt's article (last link) says California E-discovery rules go into effect on January 1, 2007, they don't. Even so, here's your chance to vote on California's proposed changes to California Rules of Court, Rule 212.
It makes for a hodge-podge of a practice for those of us who practice in both places, but that's the nature of law. We get to follow 15,000 different procedural rules, and have them all memorized.
Coast to Coast Internet Radio Predicts the Future
Happy New Year! Join me and my fellow co-host and Law.com blogger Bob Ambrogi as we ring in the New Year and welcome back last year's guests for Coast to Coast's "Second Annual Prediction Show." Bob and I take a look back on the year that was and make predictions for the year ahead.
C2C welcomes back Attorney Stephen L. Kaplan, attorney from the law firm of Hicks, Mims & Kaplan out of Los Angeles, California and Attorney Carolyn Elefant, founder and principal attorney in the Law Offices of Carolyn Elefant (LOCE) and author of www.myshingle.com. Don't miss the predictions for '07!
From The Battle of Hastings, We Get A Baby's Last Name
Not many children can claim that an appellate court judge assigned their name. I say assigned because the parents couldn't agree on the child's last name for the first seven months of the child's life, which led to a trial. With that clue, you've likely figured out that Mom and Dad were not married, but Mom was married before. Here's what happened: Some two years ago, this case started its way through the Oregon court system.
Dad won at the trial level, but Mom appealed, and this decision was issued in the middle of December. Two years is a long time to go through life with your last name up in the air, but the court system is notoriously slow. That's why there are turtles under the columns and lamps throughout the U.S. Supreme Court. "The slow and deliberate pace of justice," according to wags at The Court. But I digress.
Christy Wizner had three other children in her first marriage. She divorced, but kept her former husband's name. She and Chad Doherty had a child without being married to one another, and the child's birth certificate show Wizner as the child's last name. Chad sued to change the name to his own, among other things.
Surprisingly, the parents rather quickly settled the issues of paternity, child support, custody and visitation rights. Any family law lawyer will tell you that those things are typically sticking points to any settlement. It's not something you hear every day, but fathers and mothers are apparently up in arms over naming rights. Christy wanted her previous married name and Chad wanted his last name.
His rationale? "She has no blood of Wizner in her," Chad testified at trial. Christy, on the other hand, argued for practicality" "I just think it would be a whole lot easier on the children . . . to keep the same last name."
And with that, the courts got involved, and we get lucky to get the history of Anglo-Saxon naming customs and rituals, starting in 1066. It's fitting, I guess, that the court started with the year of the Norman Conquest in the Battle of Hastings. It's an interesting history, and one that makes this court opinion an entertaining read.
The appellate court then proceeded to lay out a slew of factors to determine how to decide which name this baby gets. Here is the abridged version of the twelve tests relied on by the court (in the opinion, they come complete with citations): 1. The identity and preference of the custodial parent; 2. The avoidance of embarrassment, inconvenience or confusion; 3. Identification of the child as being part of a distinct family unit; 4. The age of the child and the length of time the child has used the surname; 5. The preference of the child; 6. The effect of a name change on the relationship between the child and each parent; 7. Parental misconduct (none here, other than involving the court); 8. The level of support for and contact with the child; 9. The motivation of the parent seeking the name change or the parent seeking to oppose it; 10. The community reputation associated with the names at issue; 11. Assurances of the custodial parent that she or he will not change hers or his own surname or the child's surname; and,12. Important ties to family heritage, ethnic identity, and cultural values.
So how did the court reach its decision? The important factors for the court were both practical and the reasonable request of the custodial parent, here Mom. Like it or not, Chad lost on appeal and the baby now gets Mom's last name.
That is, until Chad appeals and the Oregon Supreme Court decides to take the case since it's a matter of discretion. You may ask whether the outcome would have been different if the parents were married? That's the easy question, and perhaps the one Chad should have thought of first.
Computer Survey: 'Nothing Personal' Shows How Much Employees Misunderstand Email
Yes, email has been with us for 25 years now, and we are sending some 143 billion (yes, that's with a "B." I know you're still trying to get over the 25 years part) emails every day.
The divide between personal emails and business emails is obvious to some, but for many, there's little or no dividing line. Representative Mark Foley, among others, discovered just how personal business emails can be. Or is it the other way around?
We Comply, an online compliance service (with which MIPTC has no financial interest, but would not decline it offered), just published a survey of business computer usage entitled, "Nothing Personal: Survey of Computer Use At Work."
Here are some of its findings:
The survey's executive summary offers this rather startling rationale for the "apparent disconnect:" workers think that logging on to so-called private email services such as Hotmail, Yahoo, AOL and the like somehow insulate them from "work."
Here's perhaps another way to look at it: if you're at work using a work computer, your emails are not private, something that's not lost on the older generation, according to the survey. And you thought younger workers understood computers better.
Just How Material Are You? Can You Do Without For A Year?
What New Year's Resolutions are you making? Losing weight, promising to be nicer, cutting the cord of the TV, reading more books?
Try this one on for size: buying nothing new for a year. A group of 10 San Franciscans tried it, and some liked it so well that they've signed up for another year. One of MIPTC's favorite AP writers, Lisa Leff covered the phenomenon in this article. It's an interesting take on materialism.
Just wouldn't be prudent for this gadget hound.
One Resolution Many Will Thank You For Making
If you're trying to think of New Year's resolutions, here's one brought to you courtesy of the United States Environmental Protection Agency: Either donate or "E-cycle" your old electronics. According to the USEPA, "donating working electronics and game boxes saves valuable resources by extending the life of the products. Working electronics can be donated to community groups, local schools, and nonprofit organizations. I f you can, include original software and licensing information with the donated equipment. Be sure to erase personal data before donating them.
If you can't donate, then try recycling. Broken electronics and computers too outdated to donate can be recycled. Computer monitors and older television picture tubes can pollute the environment if not recycled or disposed of properly. Check with your product's manufacturer to see if they will take back or trade in your product for recycling - - many manufacturers do including Dell, Hewlett-Packard, Apple, Toshiba and Sony. See if your retailer has an in-store collection program or if they are hosting an electronics collection event. Cingular, Best Buy, and Staples offer ongoing in-store collection of used cell phones, and Best Buy and Staples sometimes host collection events. Local governments often collect electronics as part of their household hazardous waste management program."
In this world of instant tech and new gadgets, avoid throwing your old ones into the trash.
Lawyers Appreciate The Opportunity To Use Legal Skills To Make A Difference
My fellow Coast-to-Coast co-host, Bob Ambrogi, tagged MIPTC to participate in the "Lawyers Appreciate ..." 10-day countdown. Although I'm not completely sure of the reasons behind its origin, I believe it's an effort to wind up the year on a positive note. To follow a number of other appreciative posts, here's MIPTC's thoughts as 2006 draws to a close.
Lawyers appreciate (at least this one does) the opportunity to extend a helping hand when someone needs it and can't do it on their own. Throughout the last 20 years of my practice, I've had that opportunity too few times. Times when it truly makes a difference in someone's life when you use your skills as a lawyer to get them out of a jam. I'm not just talking about the everyday practice for paying clients, but the extraordinary opportunity to help someone who can't afford your assistance, but who really needs it. And I'm not just taking about the Public Law Center type help (which is certainly an organization deserving of all lawyers' time); I'm talking about the kind of one-on-one help that changes someone's life.
As a young lawyer, I first had the opportunity to extend this type of help in the most unlikely of situations, and that experience changed my perspective on how to practice law. As regular readers know, I've ridden a Harley-Davidson for a long time. My first bike was a ramshackle conglomeration of a bunch of different parts from different bikes to make up one bike. Others who know better would have called it a "basket bike" - a motorcycle that started its life as a group of lifeless parts in not much more than a basket.
Even though my bike was nothing great to look at, it ran thanks to a man who had repaired motorcycles his entire life and was well past retirement. He graciously took my parts, married them together into a working bike and kept it working. He had done the same for many others. Once in awhile, though, his customers wouldn't have the money to pay for his work once their bike was put together, and he'd have to sell the bike in a lien sale to recover the cost of his labor.
Unbeknownst to me, he had done just that that several months before I walked into his shop, and had been consequently sued by the owner of the basket parts because the customer wanted his now-built bike back (now sold in the lien sale), despite his inability to pay. The customer had hired a lawyer to sue the repairman.
The customer's lawyer promptly sent out discovery and had placed my repairman in the untenable position of facing terminating sanctions because the repairman couldn't afford to pay for a lawyer to represent him and didn't know how to respond to the discovery. The repairman had hired a lien-sale company to sell the parts bike, and they had done everything by the book. The repairman, however, was about to lose the case and have a judgment taken against him for something approaching the value of a new Harley because he didn't respond to the plaintiff's discovery. He had only a one-room garage where he repaired bikes and was about to lose it, along with the ability to make his livelihood, due only to a procedural technicality.
When I walked into his shop, he asked me - knowing I was a lawyer - to help him with the "paperwork" he had received from the plaintiff's lawyer. I recognized the dire straits he was in, but also recognized that his lien sale company had done everything right and that the plaintiff really had no legitimate case. After sending a detailed letter explaining the entire situation to the opposing counsel, along with a stern warning should a dismissal fail to follow quickly after the receipt of my explanation, the case went away, and the repairman (and now his son) continue to fix Harleys for riders to this day.
This story points out how something that took a relatively small amount of time and expense for me as a lawyer to accomplish can instead make all the difference in the world for someone who doesn't have those skills. MIPTC encourages other lawyers to be on the lookout for those situations where your help will make a difference, and with the benefit of this story tucked away in your memory, also choose to act.
It's a wonderful life, especially when you participate.