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No Monkey Business!!

Selfies are the theme!

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Today’s legal question: Why is a corporation considered to be a person by the U.S. Supreme Court in the Citizens United Case (See Washington Examiner article) even though a monkey is not allowed to copyright his selfie? I guess I could get crazy and also ask why the PaMunkey Indian Tribe can own a casino! (Richmond.com)

Did you see this story about Naruto? (Yahoo Story) Yes, I know…crazy that we even know his name!

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Who would have thought that a monkey would be involved in a copyright lawsuit? It’s obvious that he doesn’t have good lobbyists working for him.

It all started when a judge ruled that a monkey does not have the right to own a selfie. Then on appeal, three judges unanimously upheld a lower court ruling and dismissed the original lawsuit that had been brought by PETA. (People for the Ethical Treatment of Animals). The picture was taken by using a  UK-based photographer’s camera. Apparently, the monkey walked up… and pressed the button. 

Then in 2015, PETA filed suit on behalf of the monkey against wildlife photographer David Slater, seeking financial control of the now-famous selfie of the grinning monkey in the picture above.

The Appellate Court seems irritated with having to decide this case. Here’s what the opinion said,  “We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement”.  Judge Carlos Bea continued, “We conclude that this monkey — and all animals, since they are not human — lacks statutory standing under the Copyright Act.”

Then, they sent the case back to the lower court… to determine what attorney fees that PETA owes the photographer’s attorney. I wonder if they will ask the monkey to help bear that burden. This whole story makes me “paws” (see what I did there?) and wonder… what would cause an organization to think that monkeys should have financial rights? Come on!

 

And finally for pic o’ day, this has nothing to do with the blog but it truly makes me laugh!

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An Expert or an “Opinionater”

I know it is hard to believe, but I am truly starting the blog with a picture that is related to the subject matter. I know… that is some crazy blogging!

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Please fight through the blog today because there really is a purpose. I mean it!

This is probably more of a sports blog… because I wanted to write about the upcoming NFL draft. But, I am writing it in the context of law.

(Here we go…talking some legal) To be qualified as an expert in a jury trial, you have to be qualified to give an opinion that is beyond common knowledge. The Virginia jury instruction tells jurors:

In considering the weight to be given to the testimony of an expert witness, you should
consider the basis for the opinion and the manner by which the expert arrived at it and the
underlying facts and data relied upon.

Which leads me to the the concept of “experts” as it pertains to NFL football drafting.  (And yes, I do enjoy using the “emphasis quotes” which is probably as irritating as seeing someone using “air quotes” when they talk) Football fans know that it’s almost time for the NFL draft. My email in-box is being targeted with all kinds of offers to buy draft information, and sports sites are filled with updates and predictions on who will be drafted in the first round. These “experts” all have their opinions.

So let’s travel back to 1998. It’s the draft and the Indianapolis Colts are on the clock with the first pick. Do they pick Peyton Manning or do they pick Ryan Leaf. Well, here is Vic Carucci’s thoughts on who to pick:

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Carucci’s opinion that the Colts should select Leaf is actually laughable now. The reason I post this scouting report is to show that experts can be absolutely wrong. He missed it here.

Recently I watched an ESPN 30 for 30 episode about the 1993 NFL draft. The year that John Elway was drafted first. During that ESPN documentary, we are reminded of their draft expert, Paul Zimmerman, who proudly proclaimed that it was a mistake for the Miami Dolphins to draft Dan Marino. “I don’t understand it”

He went on to say that no one was there to coach him and that it was a mistake for the Dolphins to draft him. They had other needs. That was his draft expert opinion.

I close with the thought that I have seen more expert opinion that should really be more”Opinionater” than expert. In trial, I see defense experts making the proclamation that someone needs no more treatment and has no permanent injury… after only seeing medical records and not even seeing the person.

I had one defense expert tell me under oath that he felt more qualified to give an opinion after not seeing my client, because this made sure that he was not impacted by any bias. Solely basing his opinion on the records. Of course, he smirked when I asked him if he refused to see patients in his office… because meeting them would cause a bias of his treatment. Boom! That is no expert opinion. That is silliness.

And for pic o’ day… I think this qualifies as good expert advice!

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When To Settle!

I missed blogging yesterday. So, let’s start with some food thought… move to the legal part of the blog (which you are probably thinking  is highly unusual) … and on to some “exercise”. A real plan!!!

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It takes two to tango is a phrase from a 1952 song that has become synonymous with cooperation. President Ronald Reagan used it when discussing Russian and American relations during a 1982 presidential press conference. I have heard it applied to the negotiations during lawsuits.

If one party does not want to settle, it makes it nearly impossible to resolve a case. When a client asks me early in the case whether I think their case will settle, I sometimes mention the Two to Tango analogy. However, the “want to settle” may get influenced, if the assigned judge in the case tells the parties that “you better get this settled“.

I have seen corporations like Walmart and Food Lion take the corporate approach that “you can file suit against us, but be prepared to go to court because we don’t settle cases“. Ultimately, their yearly financial data will tell them if that policy makes financial sense in handling lawsuits. And that can lead to a change in corporate policy.

There are some lawyers that will not take cases against corporations with a no settlement policy, They know that they will have to file suit. And that’s what these companies count on in coming up with that claim policy. On the flipside, not settling cases can lead to significant defense costs and large jury verdicts. That is the corporate balance to weigh.

Yesterday, USA Today had a story (here) titled Trump golf club settles suit from former members seeking refunds. President Trump has previously said that he does not like to settle lawsuits and prefers to fight them. But in this case, he has settled with former members at his golf course in Florida.

The original lawsuit had been brought by golfers who previously purchased memberships at the Ritz-Carlton Golf Course, before Trump bought it in 2012. The golfers sued, claiming that he failed to return their previously refundable deposits that ranged from $35,000 to $210,000, after the ownership change.

According to court documents, Trump National Golf Club agreed to pay nearly $5.44 million to the members who were part of a class action. After legal fees, each of the plaintiffs will end up with about 71% of the refunds they sought, according to the ruling.

When I saw this article, it reminded me of a case that I handled long ago against Food Lion. My client had received about $4000 in chiropractic care, as a result of a fall in one of their grocery stores. Because Food Lion’s strategy was to never pay (at that time), we went to trial in Norfolk Federal Court.

Magistrate William Prince (a former defense lawyer before he went on the federal bench) did not think much of my claim, and dismissed it at the end of the two day trial. He did not let the jury return a verdict after sitting for the entire case. As an energetic crazy young lawyer, I was truly ticked off with the dismissal of the case… and appealed to the 4th Circuit.

At the conclusion of the appellate argument, it was clear from the questions of the panel that the justices were going to rule for my client, and all indications seemed to point to a return of the case back to the trial level, solely on the issue of damages.

One of my great memories from of all my years of trial work includes this case. That’s because, on the way out of the appellate court room that day, the defense attorney turned to me and said, “This is one case that Food Lion should have settled long ago“.

Soon thereafter, I received a call from that lawyer that led to a very satisfying settlement for my client. We caused a change in corporate policy… at least for that day!

 

And finally, in the introduction I promised something about exercise. This counts… right?

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Positivity Over Negativity. (Plus Barney Fife!)

In the world of strange facts, dolphins sleep with one eye open. That doesn’t seem like good rest! Maybe there are just some things that are not meant to be seen!

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This is really a blog about negativity… and then positivity.

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I read over the weekend that Lindsay Vonn had announced that she would not be attending the White House as a winning Olympic athlete. Then, in her first event, she failed to medal in the downhill Super G and dropped to sixth in the standings. (ESPN)  That’s when an avalanche of negativity hit her online.

Because of her previous political statement, she received tons of hate tweets. (USA Today) Such tweets as “You got what you deserved”, and “One loss down and only two more to go”. 

One USA teammate was sickened by the negativity directed at Vonn. She tweeted,  “It’s gross. I have been mistakenly getting her hate mail for weeks!”

A lot of times when I read a news article online, I find myself scrolling to the bottom of the article to read the comments. Even on tragic stories, you can find some of the meanest comments attached to the article. Sometimes it involves an attempt at bad humor, and other times just a remark about how the person deserved it.

Several years ago, one of my friends lost his mother in a car accident. There was a news article in the local paper that even included a picture of the her car that was in the crash. The story reported how she had been killed on impact. I was so saddened by the story and my friend’s loss. But sure enough, at the bottom of the article there were negative comments that included one that basically said, “She got what she deserved. Old people shouldn’t be driving anyway“.

The Vonn story is a reminder that there are people who think that their disagreement means that there is license to be mean. You can’t change the anger in society. You can only control your own thinking and how you treat others. Just typing that makes me feel like I need to post something right now, just to make me smile.

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I read that Vonn story while drinking coffee on Sunday morning. Then, during the Sunday morning church service, the minister included Psalms 103 in his message, and remarked that he thought that it was the most positive passage in the Bible. (Here)

 

The Psalm includes such verses as  “Bless the Lord, O my soul, and forget not all his benefits” and “Bless the Lord, all his works in all places of his dominion: bless the Lord, O my soul“.  Reading it made me feel positive. Being grounded in what is important and not to be influenced by the negativity of others. And then… I felt so positive!

Sure, some days it can feel like this… Right?

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But other days it’s really the positive!

 

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Science-Prophecy-Technology?

First, and unrelated to the blog, I know that you are wondering what I think of the Michelle Obama portrait that was unveiled yesterday at the Smithsonian’s National Portrait Gallery.

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Well, I think that Ben Shapiro might have captured my thoughts with his tweet.

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But I digress!

If you look at the title of the blog… it must be getting crazy! Although,  this blog mixes a little bit of conspiracy theory with a little bit of Science/technology?

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In Gulliver’s Travels Jonathan Swift described the two moons of Mars, Phobos and Deimos. He gave their size and speeds of rotation. This was more than a hundred years before either moon was discovered! Was he “simply” a Martian? Did he just randomly guess it. Was it because he called the Psychic Network. Or is this the explanation? (Here) (Here’s a hint, maybe someone had written about moons in the 1600’s and it was just a random writing)

In Wall Street, Gordon Gecko said that “the most valuable commodity I know is information“. So here’s an article from USA Today titled “You are being tracked. Deal with it“. It is worth reading in it’s entirety, but I will give you a sampling . It’s why you might be talking about buying something from Best Buy... and then an ad pops up on your iPad with a Best Buy discount. Is your iPad really that wicked smart?

As the article indicates, your mobile phone already tracks every move you make, thanks to GPS and the location tracking feature on most apps. When you surf online on your computer, Google, Amazon, Facebook and others know which websites you went to, how long you spent there, what you clicked on, with whom you interacted with, which stores you spent money with and more.

The article goes on to discuss TV snooping that obviously includes tracking what you are watching and storing. Plus, your TV can probably hear your conversations. Just an interesting “throw-in”. I encourage you to read this reporter’s take on technology and how it affects us. What do you think is out there next?

And for pic o’ day… more information might not always be good?

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Politics and the Puppies?

Where should we start? Because this blog is a little bit about dogs at the racetrack. And there may even be a little gambling mentioned. So where should we start? How about this as a starter? (Or maybe I just wanted to post this just because it’s Potamus)

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This really is a blog about politics and the puppies. Hence the title! Although, I just saw a highlight of Tom Brady with his hair strangely darkened, and I wish I could write about that. Just sayin’!

I will never forget the time that I went to watch the greyhounds race in Florida. I did not know what to expect. I just kept hearing that I needed to “go watch the puppies run”.

When I arrived, I noticed many retired grisly old men with their racing sheets. They had their cigars and drinks and were planning their bets.

I asked a table of men how they knew which dog they were betting. One said that, “I go down to the track to look at the dogs. If I see one of the trainers with a garden hose, filling the dog’s mouth with water, I know that is not a dog that is supposed to win that day”. 

In 2014, 17 greyhound dogs tested positively for cocaine. At least 383 racing dogs have at Florida racetracks since 2013.(Miami Herald)

According to the article, one farmer who told authorities that in 2002, Florida greyhound trainers were paying him $10 a head to “dispose” of aging, slow or gimpy dogs? The old farmer estimated killing between 2,000 and 3,000 greyhounds over the years, shooting them in the head with a .22-caliber rifle and then tossing their remains into a ditch.

You might be disturbed by this because you are a dog lover, but I write about this for an even greater theme.

You might wonder why there is still dog racing in Florida. It’s true, there is a large movement to do away with it. But the rationale is that it creates jobs. Yes… JOBS.

I have learned that there are a lot of societal ills that can be explained, if they create jobs. Pipelines through oceans and forests create jobs. Natural gas drilling creates jobs. Removal of regulations on businesses creates jobs.

At some point, legislators need to look at the big picture. Cleaning up an oil spill does create jobs, but is that really something that should cause pride?

And that’s my brief foray into politics.

And finally… My friend, Mike Thomas, posted this on Facebook and I had to put it in the blog!

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Life Expectancy Table Thought

Injury cases that I take to trial, typically include a claim for a permanent injury. In those claims, I introduce a life expectancy table from the code; so the jury can consider how long my client is expected to live and the length of effect of the permanent injury.

If you really stop and think about a life expectancy table, it’s not in the positive thinking department. Unless you think, “No worries… I am going to outlive that!”.

But the reality of a life expectancy table is that it really could also be named a death expectancy table. How do we really deal with that thought.

Several years ago I saw a story that I saved, that deals with a man who was dealing with the fear of death.

A sick man turned to his doctor as he was preparing to leave the examination room and said, “Doctor, I am afraid to die.  Tell me what lies on the other side.”

Very quietly, the doctor said, “I don’t know”.

The man replied, “You don’t know?  You’re, a Christian man, and don’t know what’s on the other side?”

The doctor was holding the handle of the door. On the other side came a sound of scratching and whining. As he opened the door, a dog sprang into the room and leaped on him with an eager show of gladness.

Turning to the patient, the doctor said, “Did you notice my dog?  He’s never been in this room before. He didn’t know what was inside.  He knew nothing except that his master was here. But, when the door opened, he sprang into the room without fear.

I know little of what is on the other side of death,  but I do know one thing… I know my Master is there and that is enough.”

I love that thought.. even though it does make me wonder why a dog is wandering around a doctor’s office. 🙂

The story reminds me of this saying of comfort:

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On the light side, our pic o’ day is about time. For me, it has such a familiar ring to it!

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Noose in the Neighborhood

You don’t expect to come to a legal blog for some Uber humor. Right?

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And much like leaping into an Uber, let’s leap right in to our topic today. I thought I would get crazy and actually write about a case where the Virginia Supreme Court is going to rule. (Richmond.com)

The Supreme Court of Virginia is scheduled to hear arguments this week over whether a man broke the law, when he hung a black-faced dummy in his front yard. It is a question of free speech versus intimidation.

Why is this getting attention? As background, from 1877 to 1950, there were more than 4,000 lynchings of African-Americans in Southern states.  84 of those were in Virginia.

In 2015, Jack Eugene Turner was convicted of violating a state law that specifically prohibits hanging a noose to intimidate. He used a rope to hang an effigy of a black man from a tree in his front yard in 2015 in plain view of the street. A black stuffed dummy hanging from a rope! Is that free speech?

Not surprisingly, Turner is white. He was upset at his black neighbors.

On the circuit court level, Turner got six months in jail for violating the “noose statute”. He argues that his free speech rights were violated and that state law only bars displays of nooses on public land, not private property. His conviction was affirmed at the Appellate Courts. Now, his case heads to the Virginia Supreme Court.

The Virginia attorneys disagree, arguing that the noose was meant to intimidate, and did instill fear in his neighbors. His attorney disagrees.

While race relations are at the forefront of nearly every news cycle, courts should not stray from following the law as it is written, albeit at times unpopular or controversial. The law in this matter is clear,” wrote Turner’s lawyer, C. Holland Perdue III.

In asking the justices to hear the case, Perdue wrote in his appellate brief, “While I agree with the court of appeals and the trial court’s rationale that hanging a noose and a ‘dummy’ is reprehensible and offensive, both have erred on the side of public opinion and not the law. Poor and distasteful speech must be protected.

He went on to write,“Private property affords the owner exclusive and absolute rights to display any symbol or symbols regardless of how reprehensible or offensive we may find them and these symbols are protected speech“.

According to the article, Christopher P. Schandevel, an assistant attorney general, wrote to the supreme court justices that, “Turner hung a black-faced dummy in a noose from a tree in his front yard to intimidate his African-American neighbors, with whom he had been feuding.

The display had its intended effect — causing Turner’s neighbors to fear that Turner might harm them or their children,” Schandevel reported. “Expressive conduct is generally protected by the First Amendment, but expressive conduct that communicates a ‘true threat’ is not. Intimidation constitutes a ‘true threat’ when it is designed to place people in fear of death or bodily harm,” he wrote.

Originally, Turner was convicted of violating the 2009 Virginia law that bars the display of a noose on a highway or other public place “in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury.” The charge is a Class 6 felony. That is the conviction that he is appealing.

The briefs set forth the arguments well. All I can say is, can you imagine coming home to a neighbor who has that hanging in his yard?

And for pic o’ day, because we are currently hiring additional lawyers and staff, this seemed topical… and it made me laugh:

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All About The Stats

They call it analytics. defined as The systematic computational analysis of data and statistics. (I promise, I won’t mention analytics again. I will do better! I promise) I feel like I am putting you through suffering by starting out like this.

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So here’s the turn. I always enjoy writing about the Indianapolis Colts in a legal blog. It’s true fandom. It’s why I can write about them, even though they lost 36-22. Not good!

Looking at their nationally televised Monday night football game, they received notification that the officiating crew was Walt Anderson’s crew. His crew averages 5 penalties per quarter, which is the second highest rate in the league.

The Colts coach could choose to ignore the crew assigned by simply saying “We are going to play Colts football and keep chopping wood“, or he could incorporate that into preparation.  (Here’s an article where the Steelers Coach did ) These Walt Anderson officials call it tight, so it means that your defense cannot be as physical and your linemen have to be careful in blocking and not holding.

How does that apply to our law practice? Usually, when we first discuss a case with a new client, they ask “How long will this take?” and “How much is my case worth?”. My guess? Probably the two most asked questions.

In handling a case, the worth is really related to the injury and treatment of the client, as well as the facts and liability of the person at fault. If a lawsuit has to be filed, then worth takes on additional components. The systematic computational analysis. (See, I didn’t use the A word) Where the case filed, and who is assigned as the judge are additional factors.

If I have an upcoming jury trial that has a judge assigned that I do not know, I usually ask around to find other lawyers that have been in that courtroom. A recent case with an unknown judge gave me the scouting report that she let’s you try your case. For another case this past month, I was told that the judge gets very involved , and he likes to be in charge of his courtroom, which is code for being an active interrupting judge.

In both instances, you tailor your trial strategy. I don’t just say let’s do what we do and go in there and just keep chopping wood. Can you tell that I am hopeful for a new Indianapolis Colts coach? More fandom!

And now our pic o’ day…. (thankfully I don’t feel this way, but it makes me laugh)

 

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“Get a Tailor”

I often hear that we are living in difficult times. I cannot disagree. There is a lot of anger out there.  I guess that’s why I like this picture. Lessons from a dog about finding joy in living in the present!

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Which brings me to some anger that came in on our website a couple of nights ago. Here was the message:

Message Body:
You have the worst commercials I’ve ever seen. Your clothes are terrible. It would benefit you to meet with clothing specialist and a decent ad agency..

How about that! I guess she doesn’t like my suits… or my commercials? Where there is anger….there is also pain!

Which brings me to the survey that we had done several years ago. At the time, a political survey company, headed by a man named Frank Luntz, (His wikipedia) was a good place to start. He was know for doing political surveys in several states. This was long before Frank Luntz was regularly seen on Fox News. (By the way, his hair is fascinating. Just sayin’. Survey says?)

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It was around 1995, and I was still facing a lot of criticism for my commercials. On a weekly basis, I would hear from lawyers, who told me that they were offended by them. Some even said I was ruining the profession. So, even though business was good, I was still concerned about our marketing. I had to be confident in trying jury trials and legal marketing was still a bit new. (Today, people are so used to legal marketing that it’s not easy to even make an impact with TV ads)

I hired Frank Luntz to do a survey of several things, so that it didn’t seem like it was only a survey about our marketing. This was back in the day, when people would be honest about their feelings in a survey. Now… not so much.

Luntz finished his survey and left a voicemail that he wanted to go over the results. Even though we had hired him, he had no idea what we did as a business. Those doing the survey were not in any of our markets.

I called Luntz and said that I was returning his call. “What do you do for a living?”, he started out. I told him that I was a lawyer. He seemed more confused, which made me really wonder what he was about to tell me.

“I laughed when I read the survey responses”, Luntz said. Which isn’t what I expected. Then he went on to tell me what he had learned. One-third of the people liked me; one third despised me. And then he added, that there was about 6% who had never heard of me… and the rest could care less about me.

He went on to add, “keep doing what you are doing. It’s obviously working, because they know who you are”.

I have to admit that I fall in the category of wanting to be liked. Still, when I see a web hit that comes in about our advertising, I remember what Luntz told me. At least you are getting their attention. Advertising and branding. And 40 years from now, I hope I am still receiving those calls!

An attack on the suits? Right? Maybe I should show more of the socks next time!!!

And finally, I have to mention National Coffee Day.  Shouldn’t this be a federal holiday? Yes! On our law firm social media pages, we are having a contest, to celebrate.  These are the good days!

I hope you have a great weekend! And here is pic o’ day. More dog humor. I guess this pup is not living in the present!

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