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Archive for General Law

Blame Alvin the Cat

Wednesday, February 18th, 2015

You’ve heard the old excuse  “I don’t have my homework because the dog ate it”. Well, how about the cat?

My previous blog (here) discussed a Roanoke lawyer who missed a statute of limitations over 2 dollars. Now, a  lawyer in the D.C./Virginia area has also failed to file a timely response to a summary judgment motion in Federal Court. His excuse is  part of his court filing that includes Alvin the Cat.

The ABA Journal and  Abovethelaw.com describes an attorney’s court filing on February 10, in an attempt to get a judge to excuse his failure to file a timely response and to grant him an extension to now file.

The lawyer’s initial problems started when he contracted both gout and pneumonia in January. He found himself bedridden, according to the filed pleading, with severe pain and coughing. He wisely went to the emergency room where they gave him painkillers.

Over the course of the next few days, he was taking Percodan and Percocet as well as steroid indomethacin. The lawyer describes that the medication caused him severe gastrointestinal disturbance that required perpetual hobbling to and from the restroom, generally interfering with the level of concentration need to oppose a motion for summary judgment.

Then the lawyer went on to describe a series of events that, combined with his illness, really made it impossible for him to work. This included the next section of his brief that was titled Alvin the Cat.

With his court deadline bearing down on him, his children came home from school on January 30, and became worried because no one could find their longtime house cat, Alvin. A missing cat search began throughout the house, only to end in the finding of Alvin in the closet… dead.

With all the kids tremendously upset, the lawyer promised to bury Alvin the next day. In addition, his court pleading notes that after all the emotion of the search, he was just too exhausted to work on the pleading that night.

The next day, there was a ceremony and funeral for Alvin. There was also a discussion “at the funeral” about the nature of life and death and where Alvin had gone after his death. This took a great deal of time. Unfortunately, it got worse.

As the lawyer was digging the hole to bury Alvin, his shovel hit his foot the wrong way, triggering another painful bout of gout. This was a Saturday night too filled with pain to perform legal work. Then Sunday, he apparently rested.

He was back to work on Monday; but as he read his previously prepared work on his pleadings, they did not look as good as they did while on pain killers.  

The next roadblock was the emotional issues that his roommate was going through. The lawyer again was distracted by his work because he needed to provide legal and emotional support concerning the state of the man’s failed marriage.

The attorney concluded his extension request by summarizing his plight in stating that For reasons wholly unclear, that morning he was in need of counseling concerning the state of his marriage to the point where I was concerned for his immediate well-being. I think Alvin’s funeral and ceremony with the kids triggered something. In any event, we spoke for several hours, following which plaintiff’s counsel was exhausted and his foot was on fire.  

The attorney explained to the ABA Journal that the reason that he was so explicit in his detailed explanation was that he felt that honesty was the only way to make the Court understand what had happened. He felt that his events fell outside the typical reasons of why deadlines get missed.

The Judge probably will rule against the extension. In the meantime, the least we can do is have one final thought of Alvin.

And for pic o’ day, this is one that I didn’t get posted after Christmas. But for this blog, it just seemed apropos:

fat

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A Dismissed Case

Monday, February 16th, 2015

This is the story of a case that ran out of time and money. It reminds me of the poem by Benjamin Franklin:

“For the want of a nail the shoe was lost,
For the want of a shoe the horse was lost,
For the want of a horse the rider was lost,
For the want of a rider the battle was lost,
For the want of a battle the kingdom was lost,
And all for the want of a horseshoe-nail.”

A  harsh result, but this really happened. The name of this Virginia case is Landini v. Bil-Jax

It was a case about a product that caused an injury. This products-liability case was filed by a school employee.  A Roanoke lawyer drafted the lawsuit to file in Powhatan County, where the injury occurred. The lawsuit filed was seeking an amount of  $2.5 million dollars.

The lawyer, or someone on her staff, called a local circuit court in the Roanoke area to confirm how much the filing fees were for a $2.5 million lawsuit. The answer was $344. On September 2, The lawyer overnighted her $344 check with the drafted lawsuit, to the Powhatan Circuit Court.

The next day, the clerk  received the mailing with the check and lawsuit which was September 3. The lawsuit had to be filed by September 9 because of the two year statute of limitations time period.

The clerk called the lawyer on September 9. and told her that the filing fee check was short. As it turned out, Powhatan County charges more than the Roanoke Court. The clerk advised that “Your filing fees are $2 short; it’s $346.” The filing fee was more because during the previous year, Powhatan County had approved an increase in their library fee that was tacked on to the court filing fee, from $2 to $4.

As soon as the clerk notified the lawyer, she agreed to send another check for the needed amount. She mailed that that check out the next day. When the check arrived,  the clerk stamped the lawsuit as filed. The date of the stamp was September 13,  now four days after the statute of limitations deadline.

At that point, the clerk had never told the lawyer that the lawsuit had not been docketed as filed. The clerk had only told her that she needed to send an extra $2. There was no discussion of the clerk holding off on filing the suit until the small amount was received, so the lawyer didn’t know that her statute of limitations was running.

In the state of Virginia, you can wait up to a year to serve your lawsuit on the defendant. In this case, the Roanoke lawyer never served the suit, so she nonsuited it and then refilled it and then served it on the defendant.

That’s when it happened! The lawyer  received the defendants’ pleading called a special plea of the statute of limitations. I don’t even want to imagine the lawyer’s feelings as she read her mail that day and saw that her original lawsuit had been date stamped originally as being filed four days too late, after the statute of limitations September 9 original deadline.

The trial court ruled that the plaintiff had indeed filed the original suit two years and four days after the injury; meaning that it was filed after the statute of limitations had run. The Roanoke lawyer appealed.  The Virginia Supreme Court agreed with the lower court and determined that the filing fee, including the library fee, had to be paid before the lawsuit could be considered filed. A dismissal over  2 dollars.

Maybe that is why the practice of law has been described as five baskets, five snakes… and four lids.

And for our pic o’ day, it’s all about the evidence. And if you are in the snow right now… be real careful out there!

marshm

 

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A Barber’s Punishment

Wednesday, February 11th, 2015

From time to time I have posted a pic o’ day that is taken of a pet who has committed some mistake in the house. They are called pet shame pictures.

no regret

A picture like this where their owner prints a sign next to their pet.

Now a new form of shame punishment has been introduced. The Washington Post is reporting that a barber is offering to give your child a haircut as punishment for misbehaving. The barber calls it the Benjamin Button Special with a nod toward the movie.

a shame

The barber and owner of a shop called A-1 Kutz says that he offers this form of haircut for free, to parents who want to try a novel form of punishment. Supporters believe that it is the perfect cut for kids who need to “act grown”.

Supporters for this kind of punishment will say that these parents are creatively doing whatever it takes to teach their kids a lesson. And at least there’s no “physical hitting”.

I’m no psychologist, but a lesson that lasts until the hair grows out and subjects a child to ridicule seems more than just discipline to me. I don’t see this as hilarious lesson teaching. That’s just my 2 cents. I say someone should trim this barber’s nonsense.

And for pic o’ day, here’s an animal with no shame!

IMG_0056

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Man Without a Country

Wednesday, February 4th, 2015

     The Man Without a Country was a short story written in 1863 by Edward Everett Hale. It was intended to be a bit of propaganda for the Union during the Civil War. 

     It is the story of an American soldier named Philip Nolan, who renounced his country during a trial for treason. In the story, he is sentenced to spend the rest of his life at sea without ever hearing any news of the United States or even to have it mentioned. That’s why he was a man without a country.

     Through the years at sea, he went from being bitter about the United States, to desperately wanting his country back. Despite never escaping his sentence, he decorated his room on the ship, with a flag and a picture of George Washington. Later in the story, after he is found dead, the shipmates learn that he had written his own epitaph that patriotically stated:

                                In memory of PHILIP NOLAN, Lieutenant in the Army of the United States. He loved his country as no other man loved her; but no man deserved less at her hands.

     I write this blog because I recently watched a Frontline/PBS show titled United States Of Secrets. It’s the story of the United States Intelligence war on terror, and what was accepted as necessary to provide a secure country.

     There were many in the intelligence community, as well as Constitutional scholars, who believed that the rights of citizens were being trampled. One former NSA employee decided to do something about it. In response, Eric Snowden has become a man without a country.

     You can see it on Netflix. It’s certainly thought-provoking. If the assertions in the show are correct, than the government knows about my blog. And, it might also surprise you to learn the lengths that some businesses will go, to understand your search and spending habits.     

     And our pic o’ is also a bit of snoring technology.

taser

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The Things of Robin Williams

Tuesday, February 3rd, 2015

This is a blog about money and estate planning. And so the adventure begins.

In trying to provide guidance, an IRS auditor supposedly reminded that, “The trick is to stop thinking of it as ‘your’ money”. I guess that’s one way to look at it. Of course Earl Wilson reminded us that, “if you think that no one cares if you’re alive, try missing a couple of car payments”. I learned a long time ago that the definition of a bank is a place who loans you money… when you don’t need it. (Bob Hope)

Jerry Seinfeld reminds us that dogs are happy despite having no money or things. “They are broke their entire lives but they get through. You know why they have no money? No pockets!”.

I remember one actor saying that the only reason that he made an American Express commercial… was to pay for his American Express bill.

And that leads me to Robin Williams who defined “Carpe per diem” as “Seize the check”.

The reminder that people are funny about money.     I end the blog with Robin Williams because his estate has his entire family in an uproar. It’s discussed in the NY Times article Robin Williams’s Widow and Children Tangle Over Estate.

Nearly six months after his death, his widow and the children from a previous marriage are in a legal fight over the division of the estate. According to the widow, she is entitled to the house and everything in the house. The kids say that she is entitled to everyday things in the house… not memorabilia that has value.

The wife is blocking access to the home. The kids basically are saying that she can keep her toothbrush, they want the Oscar statute. Well, in so many words that’s how it breaks out.

The kids claim it is effecting their ability to grieve the loss of their father. The wife says her domestic tranquility is being harmed.

Yep, people are funny about money. As Malcolm Forbes used to say about being rich, “I made my money the old-fashioned way. I was very nice to a wealthy relative right before he died”.

And for our pic o’ day, speaking of legal…

lamp

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A Jury Super Bowl Caution

Monday, February 2nd, 2015

On a Monday morning after the Super Bowl, it just feels like I need to start the blog with a coffee reference.

coffee pot

 

Last week, I had some comments on my Random Blog. Several asked why I was so random. My answer was that I just couldn’t help it!

For today, I will get right to the point; with the blog,  a legal topic and with it brief! (yep… see what I did there!)

On Thursday, the Aaron Hernandez murder trial commenced. On Friday as the second day was wrapping up, the Judge cautioned the jurors about discussing the trial over the weekend. (ABC News) Then she gave the jurors a stern warning, “I am not going to forbid you from watching this Super Bowl on Sunday, if that’s something really important to you”.

The judge continued, “But I am going to ask you to be especially vigilant. If you’re watching the game with friends or family or any third party, just have your antenna — just be really, really vigilant. You have to avoid anything that has anything to do with this case or Mr. Hernandez,” she said. “If you hear that word, you got to walk out of the room, distance yourself, immediately stop people, and if his name or this case is mentioned on the television screen or computer, just walk away.”

Former New England Patriots football player, Aaron Hernandez is accused of killing Odin Lloyd on June 17. 2012. With the New England Patriots playing this game during the middle of this trial, it would not be that unusual for something to be mentioned about the trial.

The Judge wanted to take every precaution to make sure that the jurors and alterantes (18 total) are not influenced by something that might be mentioned.  I’m sure that she does not want something to cause a mistrial because of the Super Bowl.

Just one final note on the Super Bowl. I admit it, it pains me that the Patriots won. This morning, I could not watch ESPN. Just couldn’t. As for Hernandez, I wonder if he was rooting for or against his old team.

And for pic o’ day:

IMG_1454

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“I Want My Job Back!”

Wednesday, January 14th, 2015

From the world of employment law comes the story of (Washington Post) 13 United Airlines flight attendants who want their jobs back, after being let go. Because I don’t particularly enjoy flying, this story hit a personal chord.

On July  14, 2014, a United flight was scheduled to fly from San Francisco to Hong Kong. This is what they found on the plane:

 plane

     The flight attendants were spooked by the drawings on the plane. They asked airline officials to do a full search and safety inspection throughout the plane before takeoff. The airline refused to do it and did not take the drawings serious as a potential threat.

The crew then refused to fly. The airline felt that they did the necessary inspections and complied with all governmental requirements. Because the crew refused to fly, they were fired for insubordination. Now, they have filed a complaint with the Occupational Safety and Health Administration, asking the Department of Labor to reinstate them and determine whether they are entitled to back wages and legal fees.

The original flight was cancelled without available crew. To date, none of the flight crew attendants have found work with other airlines. The airline continues to assert in response that the flight had been deemed safe to fly.

And now to switch topics. In case you did not receive our January newsletter, you can click here.

And for pic o’ day, the grammar police:

grammar police

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Two Sides of the Lawsuit

Monday, January 12th, 2015

The news story is titled Woman sues daughter, son-in-law over housing dispute. (PilotOnline.com) So far, it sounds like the usual lawsuit, if such a thing exists among family.

The first part of the article, the reporter tells us the story of the mother-in-law. She claims that she went to live with her daughter and husband in Chesapeake. To accommodate her, the family built a mother-in-law suite. That is undisputed.

She claims that she contributed $70,000 to build the suite and added an additional $10,000 for closing costs, $6,000 for home furnishings and then chipped in $2,000 for a pool in the backyard .  In exchange for the monies, she would be allowed to live in the suite for as long as she wanted.

According to the mother-in-law, she moved into the suite in 2008. About a year later, the relationship went sour. She was denied access to all other areas of the property except her suite, which also meant no swimming for her. She also claims in the lawsuit that she was not allowed to use the refrigerator and was prohibited from walking on the carpeted part of the kitchen floor. As the infomercial would say, “But wait, there’s more”.

She claims that the family installed privacy doors so that they wouldn’t have to look at her. Then, it all went south, when she went to see family and had some physical issues. Upon her return, the lawsuit claims that the family demanded that she leave. She did. Later, she came back for her things. She has now filed suit for $150,000 plus her attorney fees and costs.

So far, that sounds like meanness. shear meanness from the family. “But wait… there’s more”.

The attorney that represents the family tells a different story. The family claims that she left the home by choice. She was having some health issues and went to stay with another family member while they were on vacation.  She didn’t want to be left alone in the house.

When the Murphy family returned from vacation, they expected mother-in-law to return home. She didn’t. They claim that she still has a key to the house and is welcome back at any time. As a result, they say that they don’t owe her anything. The continue to live up to the agreement.

With those facts… you be the judge!

And for pic o’ day,

watch the game

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Consent to Bad Treatment

Thursday, December 18th, 2014

      You walk into a doctor’s office and they hand you a clipboard and pen. Then, they  ask you to fill out the forms. At the end, you usually find a form called a Consent Form that basically advises you that you are consenting to a whole bunch of stuff when you receive treatment from the doctor.

The big question is whether that consent is binding on you if you sign it. Well, the Virginia Supreme Court, in a dental malpractice case, now tells us that it’s not. You are not consenting to malpractice. The case is styled Fiorucci v. Chinn (McClanahan) No. 131869, Oct. 31, 2014; It originated in the Alexandria Circuit.Court.

The facts of the case showed that during trial, the defendant dentist (through his attorney) sought to introduce the risk of surgery discussion that took place before the dental procedure .

During the trial, the circuit court judge ruled that the risk of surgery discussions between dentist and his patient were not relevant. The Judge would not allow that evidence to be presented to the jury.

The Supreme Court agreed with the trial court judge in ruling that Plaintiff’s awareness of the risks of the extractions was not a defense against his claim that defendant deviated from the standard of care in misdiagnosing the condition of plaintiff’s wisdom teeth or negligently performing the surgery. Evidence of the informed consent discussions was neither relevant nor material to the issue of the standard of care.

The case now affirms that just because we sign that form doesn’t mean that we are saying that we are ok with negligence. Something to think about the next time that they slide that clipboard to you through that little window.

And for our pic o’ day… a bit of medicine:

Sa

 

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How About Larry the Cucumber?

Monday, November 17th, 2014

Bob the Tomato, Larry the Cucumber and Junior Asparagus. They were soon to be on the screen, following their theme song, “Never ever ever ever ever been a show like VeggieTales”.

veggie

The VeggieTales are an example of an initial idea that was going the wrong direction until improvements were made, which turned it into a tremendous success. Overcoming difficult beginnings.  Wiki tells us that VeggieTales is an American series of children’s computer animated films that featured anthropomorphic vegetables (had to look that up. means vegetables with human form).  Their episodes frequently tell Bible stories in a modern pop culture way.

Here’s why they are part of the blog. It’s because their story arose out of mistake and difficulty to a continuing and thriving TV enterprise. Then, the rights of a contract stepped into the program to change the content.

The show was initially created by Phil Vischer and Mike Nawrocki, who also provided many of the voices. Vischer was testing out new computer hardware in the early 90′s. Due to the limitations of the hardware for animation purposes, he decided to avoid being too technical in creating characters with arms, legs or hair.

So, his first character was a talking candy bar. His wife suggested that he change the main character because parents would rather focus on good healthy eating rather than a friendly candy bar. So, the characters became fruits and vegetables.

The shows were originally just sold on video. Then, NBC picked them up as part of their Saturday morning program and the series aired from September 2006-2009. Then it began airing on Trinity Broadcasting Network. Now, Netflix has announced that it has joined its programming this month.

NBC removed any mention of God in the programs, including removing the original ending of each show that contained, “Remember kids, God made you special and he loves you very much!”. NBC was more comfortable with an ending that simply had a character saying “Good-bye!.

Because they owned the show through contract, they could determine the content. So, what had been a religious program was now being shown as a positive message for kids.  That meant that Archibald Asparagus could not star as Jonah. Still, they can’t stop Jimmy and Jerry Gourd or Madame Blueberry from being part of a Bible story in their past episodes.

So, will Netflix show all past episodes or just new?

And for pic o’ day,

hurry take it

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