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Random Legal Stuff

Monday, May 20th, 2013

    Here is a collection of current legal stories. Or, I could also title it, “sniffing out the news”.

sniffing 

   From Winter Haven, Florida, here’s how to really make a lady angry. (WFTV.com) A female deputy was grocery shopping on Saturday night. A man ran by and stole her purse and then jumped into a nearby SUV. Inside the purse was her badge and her .380 Ruger, still inside the holster.

     In my head I can hear that saying about “Hell hath no fury like a woman scorned”. How about a woman who just lost her purse, wallet, badge and gun. Now that is some fury!

    Next, On Saturday Virginia Republicans formally chose Ken Cuccinelli as the nominee for Governor in the November elections. In response, the Internet was filled with attacks from both sides. One especially caught my attention.

     It comes from Charlottesville’s Daily Progress. The writer calls Cuccinelli hypocritical for not standing up for the rights of fishermen. Apparently, this man is angry that Cuccinelli would dare campaign as the Shad Planking. This one reminds me of the saying that ”you can’t please everyone all of the time”. Maybe that’s why they say that when eating a pizza, cut it into four pieces if you are not hungry enough to eat six.

     Want more random?

family photo      

     And finally, from the world of sports. ESPN is reporting that former NFL wide receiver Chad Johnson has now been arrested on charges that he violated his probation. Johnson was serving a year of probation relating to the original charges of assaulting his ex-wife.

                                                                                 (picture from “the good ole days) 

 

johnson

      The original charges resulted after Johnson head-butted Evelyn Lozada. Now, an arrest warrant has been issued when Johnson failed to meet with his probation officer on two occasions, as well as failed to enroll in a mandatory domestic violence education class.

     Not sure if Johnson thinks he is applying the Mahatma Gandhi quote, “First they ignore you, then they laugh at you, then they fight you, then you win”. Unfortunately, the judge is not ignoring Johnson and I don’t think Johnson has the last part in store for him. 

     And to conclude the random,  pic o’ day. Just decided to end on a more positive note:

cheeseburger

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The Interest Catches Professor

Sunday, May 19th, 2013

     A true “if only” story from TimesDispatch.com. Or, it could simply be called a story about stealing and getting caught.

     In 1975, James Hardigan became a dental professor at Virginia Commonwealth University. In 1980, he became the associate dean for administrative affairs for VCU’s Dental Faculty Practice Association. In 2004, he retired from VCU and subsequently moved to Florida. What happened in between just caught up with him.

     Records show that in 1995, Hardigan opened up an investment account in the Dental Association’s name using the Association’s funds, for an initial deposit of $500,000. In 2004 when Hardigan retired, he transferred the account balance of $137,553 into his own personal account. The discrepancy of the 500K used to open the account versus what was transferred is still unclear.

     At the time of the amount transferred, apparently there was still a few cents that had not been credited for the monthly statement. Those pennies remained in the account after the transfer. In 2013,  the investment firm where the account had originally been opened contacted VCU and the Dental Association about the account. By now, 63 cents of interest  had accrued in the account. 

     Because the Association knew nothing of the account, school officials began looking into it. Soon, they learned about the funds and the transfer that went into the retired professor’s account.

      This past Thursday, Hardigan was in Richmond Circuit Court where he pled¹ guilty to felony embezzlement of $137,553. The details of his past caught up with the 69-year-old former professor. He probably once thought, “if only I had waited until the end of the month to get those remaining cents”. Or, maybe now he is saying, “If only I had not done it”.   The retired professor now awaits sentencing on August 9, which could be as much as twenty years.  

(¹ ABA Journal says that pleaded is also correct.  In US Supreme Court opinions “pleaded” was used 3,000 times and ”pled” was used 26 times )

     This pic o’ seems appropriate for a Monday morning:

coffee

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Warrants for Cellphone Searches

Tuesday, May 14th, 2013

      If you look at Internet home pages, you might read  ”How to stop the FBI from reading your email” or  something about the IRS targeting the Tea Party and how the Justice Department is investigating.   

     Expectation of privacy, government intervention in private lives and Constitutional protection are all hot topics. Stay with me on this. I know that the prior sentence can cause anyone’s eyes to just glaze over. Instead, let me tell you about a Florida case and see what you think.

     The decision has been called a protection for drug dealers and child pornographers. Others call it an appropriate recognition of the Fourth Amendment to the U.S. Constitution, that guarantees that citizens are protected against unreasonable searches and seizures.

     The Tampa Bay Times reports on the ruling from the Florida Supreme Court. In a 5-2 opinion involving facts from a 2008 robbery of a convenience store, the Court ruled that “a warrant was required before the information, data and content of the cellphone could be accessed and searched by law enforcement”. It is all about the expectation of cellphone privacy.

     The majority ruled that police cannot just take a cellphone and go through it, without a warrant. There is an expectation of pricvacy. The two dissenting justices noted that the opinion “has the potential to work mischief in Fourth Amendment law.” 

     The police noted that a man found with five child pornography photos in his pocket, could be arrested for having child pornography photos in his possession. Conversely, if the pictures are on a cellphone, “he’s going to get away with it”.frustration

 

 

(frustration)

The Court did leave open the possibility that there could be an exemption for the requirement of a warrant for  ”exigent circumstances”. That might leave the door open if it appears that evidence is about to be deleted. That makes me imagine a police officer snatching a phone out of the hands of some suspect who is scrolling and deleting.

     I regularly hear the expression that “our founding forefathers would have (insert a multitude of things)”.  Sometimes it does seem clear as to what the Founding Fathers and framers of the Constitution meant. Other times, it might not seem so clear. Especially when it relates to cellphones and other technology. Like this is a case where modern day meets Constitutional scrutiny. That’s why 7 Justices on the Florida Supreme Court could not agree.

     This robbery case had made it to the Florida Supreme Court after the Court of Appeals had ruled differently. They had applied a 1973 case where police had found heroin in a cigarette pack during a search. This Supreme Court overturned the lower court and distinguished the phone from drugs in a cigarette pack. What do you think?

     For pic o’ day, how about some airline non-humor:

airline nonhumor

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Social Security Thoughts & Charts

Tuesday, April 30th, 2013

    The younger you are, the less that you might feel interested in reading this blog. Since our practice does handle social security claims, I thought that I would post a few tables from Charles Schwab, that at least gives you something to think about. 

     As of 2002, you can no longer just retire at age 65. Every year in the federal government budget conversation, there is a move to increase retirement to an older age to save the social security fund. 

     Based on the current law, 2002 was the last year that someone could retire at age 65 and receive full benefits. The table below shows the different variations of when. This is a “looking into the future” blog. For some, the future is getting closer.

     One last thought. Yogi Berra said about the future, “Always go to other people’s funerals or they won’t come to yours”. He also said, “The future ain’t what it used to be”…   I know,  I “pulled a Yogi” by saying “one last thought”.  Kinda like, “let’s pair up in threes”.

     Anyway…something to think about:      

 
If you were born in … Your “normal” retirement age is …
1937 or earlier 65
1938 65 and 2 months
1939 65 and 4 months
1940 65 and 6 months
1941 65 and 8 months
1942 65 and 10 months
1943-1954 66
1955 66 and 2 months
1956 66 and 4 months
1957 66 and 6 months
1958 66 and 8 months
1959 66 and 10 months
1960 or later 67
 
Consider taking benefits earlier if … Consider waiting to take benefits if …
You are no longer working and really can’t make ends meet without your benefits. You are still working and make enough to impact the taxability of your benefits. (At least wait until your normal retirement age so benefits aren’t further reduced due to earnings.)
You are in poor health and don’t expect to make it to average life expectancy. You are in good health and expect to exceed average life expectancy.
You are the lower-earning spouse and your higher-earning spouse can wait to file for a higher benefit. You are the higher-earning spouse and want to be sure your surviving spouse receives the highest possible benefit.

      And for pic o’ day,  retirement?

another retirement

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Warren Buffett on Geico Profits

Sunday, March 3rd, 2013

USA Today provided some insight on Warren Buffet’s comments last week, after he delivered his letter to shareholders of Berkshire Hathaway. We learned that Buffett was not satisfied with the stock return for the year. He also chided CEO’s of major corporations for failing to be aggressive.

When he delivers his yearly “address”, I am always interested to see any portion of his discussion regarding Geico, which is part of the Berkshire Hathaway holdings.

funny-pig-insurance-ad

This is the pertinent part from his letter:

The insurance business. Berkshire’s insurance operations “shot the lights out last year,” Buffett wrote. The business generated $73 billion of “free money” for the company to invest. “This is truly having your cake and eating it too,” he wrote. “When I count my blessing, I count GEICO twice.”

What Buffet is saying is that Geico is helping them buy other businesses like Heinz Ketchup. I have no issue with profits for business. I understand that businesses create jobs and that’s what keeps the wheels turning. It’s the same at our law firm.

What we can really gather from Warren Buffett is the application of why insurance companies collect premiums… to make a profit. It’s not to pass on profits by charging less to their insureds. This is contrary to silly tort reformer arguments for caps.

In Texas, all the talk was that they needed a malpractice cap of 250K. By doing so, doctors would be charged less for premiums. Now, almost 10 years later, Texas doctors are not getting any reductions (SEE HERE) but the caps remain. All that means is that those responsible for causing injury are passing the expense on to everyone else.

One final thought on the excitement caused by insurance profits. In Virginia, we still have a punishment damage (punitive) cap of $350,000. What that means is that when profits are in the billions, what kind of punishment does that really amount to. Punitive damages are meant to protect the citizens that are effected by the conduct. Unfortunately, businesses are protected instead.

At least Buffett is honest about why. One of my hopes is to have a judge force him to come to Virginia for a deposition to explain the way that Geico handles their claims evaluations in Virginia. I believe that they are needlessly asserting frivolous defenses and clogging the Court system. Maybe his deposition someday soon. I can hope… can’t I?

If you think I am being tough on Geico; then yes… I am. They make me shake my head. No wonder their new mascot is a pig. It seems apropo to me.

This Pic o’ day “note” reminded me of how I believe that insurance companies accept responsibility.

Insurance responsibility

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The Finder of Fact

Sunday, February 24th, 2013

In the late 1990′s, Vice President Al Gore was being interviewed on CNN by Wolf Blitzer. In responding to a question about his qualifications in running for office; he replied,

“During my service in the United States Congress, I took the initiative in creating the Internet. I took the initiative in moving forward a whole range of initiatives that have proven to be important to our country’s economic growth and environmental protection, improvements in our educational system”.

Gore was criticized and even ridiculed for claiming to have “invented” the Internet. He and his supporters quickly defended him by saying that he never claimed to “having invented the Internet”. He was just discussing how supportive he was personally and through legislation in technology advancement.

When I looked at Sunday’s Richmond Times-Dispatch, I saw a link to PolitiFact.com, which analyzes statements by politicians and rates them on being true or false. The most aggregious statements are rated as “pants on fire”. The little graphic even has fake flames.

One of the political statements is a quote from U.S Representative Eric Cantor. In budget discussion he is credited with saying that, “ The National Science Foundation spent $1.2 million paying seniors to play World of Warcraft to study the impact it had on their brain.” Right next to that statement is a big “pants on fire” graphic.

I did not do any research on why or where Representative Cantor said that. Plus, maybe he was given faulty research or simply misstated what he meant to say. Maybe PolitiFact misstated their facts.

In the trial of a civil matter, juries receive instructions from the judge that is considered as the law of the case to be applied to the evidence. In many cases, plaintiff and defendant will call expert witnesses who give completely different opinions on the exact same piece of evidence.

As to expert witnesses, this is the jury instruction that is usually read to the jury,”In considering the weight to be given to the testimony of an expert witness, you should consider the basis for his/her opinion and the manner by which he/she arrived at it and the underlying facts and data upon which he/she relied.”

In law, a jury is known as the trier of fact. In our own lives, it is up to us to determine truth or fiction. We have learned that we have to do our own research before just accepting what we hear or read.

When I think of truth, I am reminded of my grandfather’s quote that I probably have written in a previous blog. Still, when I think about it it brings back a good memory.

Before bedtime, he would always insist on making sure that I brushed my teeth. Plus, he did not want me to shortcut it and miss a tooth. He would look me in the eye and say, “be true to your teeth or they will be false to you”. Good motiviation!

Tomorrow’s blog will be a follow-up on this when I discuss a trial from last week.

For pic o’ day, some truth:

Admit it

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Death Certificate Story

Monday, February 11th, 2013

     A death certificate is required for insurance proceeds. It may also hold the key to criminal prosecution. It is a document that states the location, date and cause of death.

     Ancestry.com tells the story of “Causes of Death You Won’t Want on Your Death Certificate”.  I have attached the article because it has several stories about death certificates that I can’t cover quickly in the blog. However, when I read the title of the article, I considered the thought that maybe no one really cares what is on their death certificate… but I digress. 

     For the purposes of the article, it tells the stories of some unusual causes of death. In 1880, J. Nash from Colorado reportedly died from sore eyes. I know, maybe that gives meaning to the saying, “you are a sight for sore eyes”.

     Ohio politician and lawyer, Clement Vallandigham, was in court to demonstrate that a murder suspect was not guilty and that the victim could have shot himself. The lawyer grabbed the gun to demonstrate his theory. Unknown to him, the gun was loaded. Hence, his death certificate of June 21, 1871, lets us know that he argued too effectively for his client.  

     Jack Daniel (yes, that Jack Daniel), was a victim of his own frustration and temper. He got angry that he could not open his own safe, causing him to kick it. The kick caused injury to his toe which got infected. As listed on his death certificate, he died from blood infection. I guess death by safe would have been a bit of a reach but the safe is on display in the Jack Daniel’s distillery in Lynchburg.

     Ancestry.com advertises and prides itself on helping people research their family history. Part of that history includes the documents that record the causes of death. The documents may also remind us to keep our temper or wear glasses to avoid eye strain.

     For pic o’ day, I went with something a little different. The document of a Toddler’s rules of possession:

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It Was Called Post Office

Sunday, February 10th, 2013

In 1775, Benjamin Franklin was appointed the first postmaster. 1847 brought us the first postage stamp; Then, a five-cent stamp with Ben Franklin and George Washington on the ten-cent. The year of 1963 brought us zip codes to organize delivery. Forward to 2006, the last time that the Post Office turned a profit… $900 million.

That is some of the history of the Post Office. It’s relevant to consider because the day may be coming when the Post Office itself is nothing but history. It seems more real, now that the post office appears to be closing on Saturdays soon.

Esquire.com brings us history and makes us consider what might be the future in its article “Do We Really Want to Live Without the Post Office?” Now that the Postmaster has determined that he doesn’t need Congress’ permission to close the Post Office on Saturdays, he announced that the post office will begin a 5-day-delivery in August. Soon we will no longer be checking our mailboxes on the weekends. (Bloomberg) No more movies arriving. No more coffee from Gevalia.

On one hand, that means less junk mail on weekends. On the other, that means that bill paying may run the risk of late fees. Plus, is this really the beginning of the end for the Post Office? Will it be like telling future generations that you could once walk right up to the airport gate and watch relatives walk off the plane; or that people once did not sit at restaurant tables and dream of being somewhere else… wherever that happens to be where they are constantly texting. Printed mail in a box: nothing but a memory?

In mid-November, the Postmaster reported that the Post Office had lost 15.9 billion dollars for the year and that mail was down 5% from the previous year. At the same time, all of us could rejoice that the Post Office, with its 461 distribution centers, was the reason that we could send a letter from New York to the woods of Alaska for 50 cents; instead of paying UPS fifty dollars to get it there.

In a time that Washington is looking for budget cuts, there is no easier place to look than the Post Office. It will have some legal impact because sometimes service or notice or a copy of a lawsuit can be sent through the mail. A cheaper way of doing private business.

The author of Ben Franklin’s biography, Walter Isaacson, was quoted as saying that after researching Franklin’s desire for a post office he said, “I find his passion for the postal service inspiring”. Based on the past and the present, the post office was considered a way of encouraging contact and community. Is it now something that is solely viewed as a monetary consideration? Or, should it be viewed as more that cannot be replaced by computers, tablets, phones and the Internet?

Yep, Pic 0′ day is a reminder that maybe everyone would miss the post office.

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Justice Scalia’s Opinion

Monday, December 17th, 2012

Supreme Court Justice  Antonin Scalia has been under a bit of scrutiny for his opinions and the way the he has expressed himself publicly. He is a Justice who engenders strong feelings from both sides of the political spectrum.  Sunday’s “LA Times” included one writer’s suggestion that Scalia is even “morally reprehensible”.

On the speech circuit at colleges, Justice Scalia is known as an opinionated and colorful speaker. When recently and publicly discussing his dissent opinion on an immigration case, he criticized the policies of the Obama administration, causing the idea to be floated that he might even be a potential future political candidate. This website outlines his known opinions and classifies them as the “Political Courage Test“.

At one recent speaking engagement, the Justice was asked by a questioner whether his dissent opinion showed that he was a bit cantankerous. His response was that, “I’m not cantankerous. I express myself vividly”.

It is quotes like that which make Justice Scalia  an interesting read. In a recent ”Trial Magazine”, I saw that he did not take kindly to being told that Seventh Circuit Judge Richard Posner  had commented on his immigration dissent. Judge Posner had mentioned that Scalia’s opinion might even be used in upcoming political ads against Democrats. To that, Scalia replied, “He’s a court of appeals judge, isn’t he? He doesn’t sit in judgment of my opinion as far as I’m concerned.”

For pic o’ day, I have returned to a few that I posted last year. I kept this one because even during the year, I would go to it for a laugh:

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Congressman’s Unique Alcohol Defense

Sunday, December 9th, 2012

When I read about U.S. Representative Tim Ryan, I admit that I knew then that I hadn’t seen it all. (Yorktown News) The story begins when Ryan was cited for a misdemeanor for public intoxication. He was charged in Lexington, Virginia.

It’s unusual to read about a Congressman being charged with public intoxication, but that’s where the story goes to a unique defense on the charge. Ryan describes the event as follows, “We were walking down the street, and I had thrown my back out the day before. I was contorted and got pulled over. They stopped me. It was bizarre.”

As a blog detective, I know that you want more clues before making up your mind on the charge. Well, Ryan had just left the wedding reception of a staff member and was walking outside. That’s when he was stopped by police around 2:01 a.m. on August 25. He refused the police request to blow into a Breathalyzer to prove he had not been drinking.

Ryan further explained to the reporter that, “I couldn’t believe they wanted to arrest me, so I refused to take the Breathalyzer”. He went on to say that he was aware that the town police had a history of pulling people over, and that was another reason for his refusal. He was not going to give in to that.

On Tuesday, the six-term Congressman did not show up for his Virginia misdemeanor trial. His attorney did show up and the presiding Judge of Lexington/Rockbridge General District Court, dismissed the charge. There were no more details on the trial and General District Court is a Court of no record, which means that there is no Court reporter transcribing the testimony.

I guess it’s not fair to consider that Ryan had three prior disorderly conduct charges in 2003, when he was a student at Bowling Green University. Instead, we should focus on the fact that he expects to get back on the House Appropriations Committee that helps determine our Federal spending. That Committee oversees about a trillion dollars in spending bills.

I certainly believe the bad back defense. I mean, he probably was in such pain at 2 in the morning after that reception. Those mean Virginia policemen were just targeting a hunched-over man.

For pic o’ day, my Mom sent me an excellent driver!

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