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Photos and Law

Sunday, May 8th, 2016

Last week, Geoff Glick and I attended a seminar in Charleston, South Carolina. That caused me to miss writing a Friday/Mother’s Day blog; but it didn’t get in the way of Geoff shopping for some Charleston hats! Of course, I promise to mention some law so we don’t change this to a fashion blog. coach 1coach 2

Today, I think,  I would prefer to keep posting pictures. Like this one that was sent to me. Can you see the combination personality on the T-shirt… in front of the White House. It’s a bit of a riddle for today! Hint: “cartoon plus hair”.

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But I digress! Here’s SOME LAW. It involves Uber and includes a case from South Carolina. It’s also a reminder to be vigilant for safety, even when we think that all is safe.

From The Recorder comes a court case about an Uber driver named Abderrahim Dakiri of Boston, who was convicted in February of assault and battery. The second Uber case being appealed relates to kidnapping and sexual assault charges against another Uber driver in question, Patrick Aiello, are pending in Charleston, South Carolina. In both instances, according to the Court opinion, It’s not whether the two drivers committed the acts, it’s whether Uber should be responsible. Their hiring practices and screening of their drivers is the real legal question . Uber’s defense is that each of their drivers is an independent contractor. So far, in other cases, that defense has not gotten any play. The Court recited in the opinion that: “It may be that facts will ultimately be revealed that disprove plaintiffs’ allegations or that tilt the scales toward a finding that Uber drivers are independent contractors,” Illston’s order reads. “However, taking the allegations in the amended complaint as true, plaintiffs have alleged sufficient facts that an employment relationship may plausibly exist.” Factually, Plaintiffs in the South Carolina tort claim have sued Uber for negligent hiring, citing evidence that Aiello had a 2003 assault conviction. According to the pleadings, Uber missed that in his background check. In their response to the lawsuit, Uber described the conviction as a “12-year-old disorderly-persons offense that could have been expunged,” according to Illston’s order. The Judge denied Uber’s motion to dismiss the negligent hiring claim in regards to Aiello, but granted it in the Boston Dakiri case, because the plaintiffs did not present evidence that there was anything in his background that should have prevented him from driving for Uber. As a sidenote regarding Uber, it recently settled a class action suit that was brought for driver wages and tips. The settlement gave drivers an approximate $84 million resolution, but Uber still did not admit that it’s company definition of their drivers’ status “independent contractors” was incorrect. So that will probably still be a continuing defense in other case. Just worth noting… Uber is only as safe as each of its drivers.  And for pic o’ day: I think this cartoon from WUMO tells the current state of technology:

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Supreme Court Thoughts

Wednesday, May 4th, 2016

Some people like to announce things… to the shock of others. This blog deals with the Supreme Court… and their recent case announcement.

What About Bob was an old Bill Murray movie. Maybe I should have called this blog “Should Bob be worried”, based on Bob McDonnell’s court case that was heard in front of the Supreme Court as the last case of the session.

I thought that the case recited below that was heard by the Court a few weeks before the McDonnell appeal might have some analogy; but hopefully for Bob… not similarity. So, here’s some court stuff:

This Supreme Court opinion dealt with the facts of a lower court criminal case, involving a Baltimore body shop, that gave kickbacks to police officers who referred drivers with crashed and damaged cars.

In a 5-3 decision,  the U.S. Supreme Court ruled that although the defendant police officer  did not try to take anything from third parties, he could still be convicted of conspiracy to commit extortion under the Hobbs Act.

Several times between 2009 and 2011,  Officer Samuel Ocasio, while on duty, encouraged auto accident victims to take their cars to the Majestic Auto Repair Shop. The shop reportedly paid police officers a referral fee of between $150 and $300 for each referral. Officer Ocasio was  caught and convicted of three counts of extortion and one count of conspiracy.

His attorneys argued that he could not be charged with conspiring with the owners to get the payments, because a conspiracy conviction would need proof that they tried to extort property from a third party.

The Supreme Court majority opinion, written by Justice Samuel Alito, found that because Ocasio was acting  as a public officer while reaching an agreement with  body shop owners to get cash payments,  and that the conviction should stand. He was joined in the majority by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Their opinion in part read:

In order to establish the existence of a conspiracy to violate the Hobbs Act, the government has no obligation to demonstrate that each conspirator agreed personally to commit—or was even capable of committing—the substantive offense of Hobbs Act extortion,” Alito wrote. “It is sufficient to prove that the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it.”

Justice Clarence Thomas wrote in dissent:

Under a correct understanding of Hobbs Act extortion, it is illogical and wrong to say that two people conspired to extort one of themselves. As explained, in a Hobbs Act extortion case, the only perpetrator is the public official; the payor is a victim and not a participant.”

Another dissent opinion by Justice Sonia Sotomayor, and joined by Chief Justice John Roberts disagreed with the majority’s interpretation of the Hobbs Act. When conspirators want to extort something from someone, she reasoned, they frequently look for victims outside their group.

“’ I But in upholding the conspiracy conviction here, the Court interprets the phrase extorting property ‘from another’ in the Hobbs Act contrary to that natural understanding,” Sotomayor wrote. “It holds that a group of conspirators  can agree to obtain property ‘from another’ in violation of the act even if they agree only to transfer property among themselves. That is not a natural or logical way to interpret the phrase ‘from another’ I respectfully dissent.”

I wonder if that gives us any insight into how the court will rule on our former Governor’s conviction, here in Virginia. Former Governor McDonnell needs those same 5 votes to go his way. A 4-4 tie will only serve to reaffirm his conviction. Like all politicians…he is still looking for the votes.

Court opinions are based on what? Not mood and attitude. As some coaches used to say about how hard practice was going to be, “It’s based on mood and attitude. My mood and your attitude”.

That leads me to our pic o’ day… and some body shop sign humor:

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The Question of Attorney Fees

Monday, May 2nd, 2016

I start out with a picture my mom sent me over the weekend, because she knew that I had some good meals at The Greenbrier in West Virginia… and she knows I like “labs”.

 

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Today’s blog is about something that lawyers usually don’t like to talk about. It’s the subject of attorney fees. So, let’s take a look at a recent case in Florida and why it’s worth mentioning.

The Florida Supreme Court has ruled that an attorney fee schedule that resulted from a Florida 2009 state law, is unconstitutional. The law limited attorney’s fees that could be paid to claimant’s lawyers in worker’s compensation cases.

In the case where the Court overturned the 2009 law, based on the attorney fee scale, the claimant’s lawyer was to be paid $164.54 for over 100 hours of legal work. That amounted to $1.53 per hour.The court also found fault in the fee-capping law because it provided no procedure for lawyers to challenge the amount of the attorney’s fees that was set by this law. The Court said,

It is undeniable that without the right to an attorney with a reasonable fee, the workers’ compensation law can no longer ‘assure the quick and efficient delivery of disability and medical benefits to an injured worker“.

Now, why should anyone feel sorry for lawyers and their attorney fees? Who cares if a lawyer feels without? Here’s a thought:

It’s the cause and effect. You might notice that all of these laws impact the claimant side. I never see a law that restricts the amount that a defense lawyer can charge.

Typically, legislators claim that such attorney fee laws protect the injured worker. In fact, in states with similar laws, it makes it harder for injured workers to find lawyers to represent them. So, the effect that the fee restriction has is that employers  are represented, and employees have a system that makes it harder to find lawyers to represent them.

Here’s a better solution. Why not make the employer’s insurance company responsible for reasonable attorney fees, when they have denied an injury that turns out to be job-related. Because… I’m guessing that insurance companies are against it. So where are all those legislators who want to protect the injured worker?

I guess this is one of those blogs that goes against the grain. It talks about money and fees… and protecting injured workers! And the Lion goes Roar!

And for pic o’ day … maybe we are headed into beach weather soon?

Dogs at beach

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Monumental Waste of Time

Monday, April 4th, 2016

I can be accused of sometimes wasting time. However, I have never had a judge in open court make a determination that I was wasting time. Not so for some California lawyers.

A federal judge in San Francisco has showed his loss of patience with lawyers in a pending antitrust lawsuit. In the suit, the plaintiffs are claiming that credit card companies were slow to certify chip readers to assist in the fight against credit card fraud.

U.S. District Judge William Alsup declared the plaintiffs’ request for an injunction “a monumental waste of resources” in a March 16 court, while denying their motion for an injunction. The judge was so ticked off with their motion that the judge ordered the  lawyers to explain how they will provide opportunities in their litigation for “the next generation of practitioners.”

According to the Recorder, the judge wrote that “In reviewing the file, the court is of the view that the pending motion is so deficient that it would be a monumental waste of resources to require the 18 defendants to respond and oppose the motion.”

I don’t even care about the facts of the lawsuit. I am just fascinated with the judge’s order. It’s real! “Stop wasting time” is basically a good mantra to live by.

And for our pic o’ day… I couldn’t stop laughing about this when it was sent to me. Think about “Robert”.

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Police Bodycam in the Hallway

Wednesday, March 30th, 2016

A Miami Beach Police officer, who didn’t trust a public defender, decided to use technology for his personal surveillance protection. (Miami Herald)

The officer was worried that his words would be twisted at the misdemeanor trial. So, he used his new “body camera” to record a hallway interview by a defense attorney without telling her. Then, when the attorney asked him to sign her notes after she interviewed the officer, he then told her that he had been recording the interview. That set off a firestorm!

Currently, under Miami Beach’s camera program, the officer did not have to inform the defense attorney that he was recording her in the court hallway. As the fraternal order of police put it, “It’s a public area. Any member of the public, including the media, can tape in that area.”

The public defender’s office was outraged that their work product could be taped without knowledge, and that it hurt representation. It basically comes down to an expectation of privacy in their eyes.

I suppose this did nothing to create a working relationship between that office and the police department. Maybe both were already a bit at odds, and body camera discussion turned the lens on the problem. (yep… see what I did there!!!!)

 

And for our pic o’ day, I have two from the “technology department”.

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Early Release: Computer Confusion

Tuesday, March 15th, 2016

The power of computer software… or not!

At the end of 2015, the state of Washington announced that more than 3,000 inmates in Washington state had been released too early from their prison sentences.  Since 2002, a computer software program had miscalculated good time credits, according to Governor Jay Inslee.   At a press conference, the Governor noted,  “That this problem was allowed to continue to exist for 13 years is deeply disappointing,” Inslee said. “It is totally unacceptable, and frankly it is maddening.”

The problem was discovered in 2012 after a victim’s family questioned the release date of an inmate. Finally at the end of January, the Department of Corrections announced that the computer glitch was fixed.

On average, prisoners were released 55 days too early. Many were allowed to remain out of prison on time served, based on a previous legal precedent that allows inmates released early to get sentencing credit for the time spent outside; Assuming they have had no further criminal charges.

Websites began listing the names of inmates who were released too early.  Families of victims and victims are contemplating filing suit for emotion damages relating to these early releases. The names of the criminals released too early was publicly available… apparently from a working software program!

And for pic o’ day… some more crazy news:

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The Electric Chair Option

Tuesday, March 8th, 2016

Some might say that this is a story that is similar to one of Yogi Berra’s famous quotes, “We made too many wrong mistakes”. I write this blog with the realization that there are strong opinions on both sides of this issue… the death penalty.

Gallup.com,  in an article titled Who Supports the Death Penalty?, tells us that the percentage of Americans in favor of the death penalty has fluctuated significantly over the years. Those in favor have ranged rom a low of 42% in 1966, to as high as  80% in 1994.

Gallup polls now indicate a range of a little over 60% of those surveyed, support the death penalty. That breaks down by party in the following way:  Eighty percent of Republicans support the death penalty, while 65% of independents and 58% of Democrats support it. So, it appears that there is still a majority that support the death penalty in certain circumstances.

That brings me to recent legislation in Virginia that has been placed on the Governor’s desk for signing into law. It is still a question whether he will sign it. It’s not whether the death penalty should exist… it’s whether method matters.

Currently Virginia carries out the death penalty through lethal injection.  The drugs for lethal injection are becoming scarce.

New legislation would bring back the electric chair. This, despite the fact that the electric chaired has been determined to be cruel and unusual punishment in two states. Georgia and Nebraska are the states, with the Georgia court criticizing the execution method for its “specter of excruciating pain and its certainty of cooked brains and blistered bodies.”

As a basis for the passage of the legislation,  Senate Democratic Leader Dick Saslaw reasoned that when someone murders multiple people, they no longer deserve to be treated humanely.

“When you commit acts like that, you give up your right to, as far as I’m concerned, to say well I want to die humanely,” Saslaw said.

In 2014, Tennessee passed a similar law to this Virginia legislation. Oklahoma became the first state last year to approve nitrogen gas for executions if the lethal injection drugs are not available. Last year, Utah approved firing squads for executions if the drugs aren’t available.

It is a serious subject. No fiction, all reality! It reminds me of another Yogi Berra saying “In theory there is no difference between theory and practice. In practice there is”.

A lot at stake for the Governor’s signature.

I usually close the blog with  pic o’ day. Fortunately, it is not a serious category. After that blog… I needed something that made me smile.  Credit goes to Amy M, who sent it:

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Munchkin Evidence

Monday, March 7th, 2016

Is it forensic evidence… not so much! It’s how the internet can get a story started and then somehow it becomes real.

Here’s what the internet started as a story about the Wizard of Oz.  ”In the original Wizard of Oz, during the scene in the forest, you can see a body hanging from a tree in the background. This is real. He was an actor that hung himself after he didn’t get the part of the Tinman. They cut it out of the later versions, but if you have a movie from before the golden age of film editing, you’ll see him.”

So, here’s the copy of the movie that shows the forlorn Munchkin that hung himself:

 

 

As you watch it, especially when it plays in slow motion, it makes for an amazing story. A hanging Munchkin?

No… it’s all a hoax!  Once people started to really watch the clip of The Wizard of Oz on video, they noticed that in the background of that scene, you can see something moving. Something crazy there!

Unfortunately, the resolution of the clip is not very good to make out exactly what is going on there. But it does look as if it could conceivably be a munchkin, suspended from a branch and slowly turning as though he had hung himself.

The rumor gained momentum, that a munchkin had been driven to suicide by his misery of either not getting a key part in the movie, or his misplaced passion for another munchkin.  Judy Garland  (Dorothy) might have fueled the notion of the heartbroken munchkin by telling stories on talk shows of the conduct of the munchkins on the set.

To this day, people still claim that there was a suicide on the set, and that it was covered up by Hollywood. Just google it, and you will see the argument for it, despite the craziness of the actors dancing toward a supposed hanging body on the set.

The reality is that it is nonsense. It’s probably something related to a bird’s wing, and then someone just decided to “doctor” the movie a bit.

It’s somewhat like crazy forensic evidence without proper support. The story doesn’t make sense, but I guess we see what we want to believe.

I have been watching the TV show The People v. O.J. Simpson on FX Network. In it, the defense lawyers are trying to figure out a way to explain the evidence away. Finally, Johnnie Cochrane blurts out that it doesn’t matter what the evidence is, if you can get people to believe the trial story. That was Hollywood’s quote, but he was basically saying that once people make up their minds, the rest is ignored.

The Munchkin suicide story is all over the internet and people defend it. In reality, it really is a crazy story… but it’s Hollywood!

And for pic o’ day, I thought I would include something that Ronald Reagan wrote to Nancy, in one of his love letters. There’s something truly touching about such emotion, as we say goodbye to Nancy Reagan.

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The 911 Call

Thursday, March 3rd, 2016

This is a quick story about one of our cases… and not taking no as no!

Our client said that he was driving down the road and got rear-ended by another driver who was not paying attention. Our client pulled off the road as close as possible to the side, to properly get his wrecked car off the roadway.  The other driver slowed down, and then just gunned it and raced away from the scene. It was a hit and run crash.

Now to make matters worse,  Our client went on to say that within a minute or so, a truck driver came down the road and swerved and clipped the back of our client’s car, causing it to spin around…and more injury to our client   Not good!

We initially filed a claim for both crashes. The first against the driver who left the scene. That claim was filed under our car’s uninsured motorist for the car that took off. That is known as a John Doe claim because that driver is unknown.

The second claim was against the truck driver. Soon, we learned that the insurance company for the truck driver was claiming a different story. The insurance adjuster said that their truck driver/insured said that we (our client) had swerved into the trucker’s lane. He couldn’t help but hit us.

It was our client’s word against the truck driver. As the insurance adjuster put it in denying the claim against the truck driver, “we have to believe our insured”.

Meanwhile, the John Doe claim only has $25,000 minimum limits, and that company offers its limits because of the significance of the injuries. The crash with the truck had caused significant medical bills unrelated to the John Doe claim… but we were at a standstill. What to do? What to do?

We did a Freedom of Information Request for the emergency dispatch records. Jackpot! Another driver coming up the road had saw the truck hit our car on the side of the road. That person called… and it was recorded. That unknown caller simply told the 911 dispatch operator that “a truck just hit a car on the side of the road” and went on to describe the car and truck.

Later… the truck driver’s insurance company just said, “Our insured lied to us”. They paid on the claim. Without that 911 call, it would have been uphill sledding! Our client had been hit by two different drivers without the character to accept responsibility.

And for pic o’ day that was just sent to me, no matter where you fall politically, this still is funny!

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Self Analysis

Tuesday, February 2nd, 2016

Sigmund Freud was an Austrian neurologist and psychiatrist and the father of Psychoanalysis. So I start with him because this blog might seem to be a bit “psychological. I might be able to explain the blog. I cannot explain why Freud would have such an angry face… and want the sculptor to forever catch that angry face!

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Of course, you don’t have to take a family photo for the eternal posting on Facebook to prove that you are happy either!

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But there are some clients who tell me that they “want their day in court” while others nudge me toward settlement because “they want to put it behind them”. On occasion, I suspect that they really don’t want to go to court. Could it be a bit of introvert/extrovert considerations? Maybe sometimes?

That’s why it caught my attention when I saw this article from Quiettrev.com that asks the question, “Are you an introvert or an extrovert?”.

For the blog today, I thought I would paste this 10 question test (RIGHT HERE) in case you like these kinds of tests. The very first question is “Do you feel drained when in a large crowd of people?”. I’m glad it doesn’t ask, “Do you feel drained by long blogs?”.

I know I have already posted 2 pics today… but pic o’ day is my favorite part of the blog. This is one that reminds me of either church or my law school classes. Who likes up front?

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