Attorneying Professionalism On Its Head?

The only thing I can say about this video is "What the ****!?

Discovery Dispute

Erin Andrews, an ESPN reporter, was previously the victim of a breach of privacy when a miscreant videotaped her through the peep hole of her hotel room.  The expected lawsuit followed. Now we see a public battle over discovery as her attorneys try to block attempts by the defense to obtain employment and payroll records and doctors' records. 

Student often think that litigation is easy. You file a lawsuit and in a few months you get a bunch of money. After all, on TV everything is over in a one-hour time slot. Students have little opportunity to consider the battle that goes on discovery and the nature of collecting the evidence necessary to prove a case. I see that as an important part of our job - shining a light on the true nature of litigation.

Accountants' Standard of Care

Who sets the standard of care in an Accounting Malpractice case?  Folks like Dr.Barbara Luna.

Condition Precedent from "Gung Ho"

From the movie Gung Ho comes this clip on condition precedent.  I show this clip in class and then ask students to tell me the contract terms.  Inevitably, the response is that the union will produce 15,000 cars in a month and the company will restore workers' pay and guarantee full employment. But that answer is wrong. The contract promises are that the union workers will work and the company will restore their pay and guarantee full employment.  But the company's promises need not be performed unless and until the workers produce 15,000 cars in a month. Production of the 15,000 cars is not a contract promise, but a  condition precedent to be met prior to the company's obligation to perform becoming absolute.  Otherwise, if the union had made a promise to produce the 15,000 cars/month, then failure to do so would be a breach of contract allowing the company to sue for damages. And that is clearly not the intent of the parties.

Good Samaritan Statute; Interpreted, Amended

The California Supreme Court has essentially written the script of your lecture on Good Samaritan Laws:

Under well-established common law principles, a person has no duty to come to the aid of another. If, however, a person elects to come to someone’s aid, he or she has a duty to exercise due care. Thus, a “Good Samaritan” who attempts to help someone might be liable if he or she does not exercise due care and ends up causing harm. The Legislature has enacted certain statutory exceptions to this due care requirement. (citations omitted).

However, the next line of your lecture may differ from the court's ruling in Van Horn v. Torti quoted above. Normally, as long as the Good Samaritan acts in "good faith," a Good Samaritan statute will insulate her from liability for simple negligence.  However, when dealing with state statutes, generalizations can be misleading.

On Halloween night on 2005, Lisa Torti, Alexandra Van Horn and other friends spent their time smoking pot and drinking. Around 1;30 AM, they headed home. Van Horn was a passenger in a car that was travelling ahead of the car in which Torti was a passenger. The lead car crashed into a pole. Torti testified that she saw smoke from the car and feared it would "blow up." her testimony was contradicted by witnesses. Nevertheless, motivated by a desire to help her friend, Torti pulled Van Horn from the car. the unfortunate result  of that action was that van Horn's vertebral injury was exacerbated resulting in paraplegia.

Van Horn sued the ironically named Torti. Torti claimed the protection of the California Good Samaritan statute, which reads as follows: 

 “No person who in good faith, and not for compensation,renders emergency care at the scene of an emergency shall be liable for any civildamages resulting from any act or omission. The scene of an emergency shall notinclude emergency departments and other places where medical care is usuallyoffered.”

The Supreme Court ruling?

We hold that the Legislature intended for section 1799.102 to immunize from liability for civil damages any person who renders emergency medical care. Torti does not contend that she rendered emergency medical care and she may not, therefore, claim the immunity in section 1799.102.

So, there is the lesson: The Common Law says rescuers are liable for negligence.  The legislatures step in to provide immunity.  But, if you don't fall squarely within the statute as interpreted by the court, then you fall back into the Common Law rule.

The final lesson may be that when a court interprets a statute based on the presumed intent of the legislature, the legislature is free to amend the law if the collective sense is that the court got it wrong.  That is just what the California legislature did with their Good Samaritan Statute, which now protects those "render[ing] emergency medical or nonmedical care." 

Is that the best decision, as a policy matter? Read here.

Here's a well-intentioned Good Samaritan making a situation worse:

Good Samaritan Song:



The unfortunate Seinfeld episode: What a Good Samaritan law is not.

Best of Ted

It's Spring Break at UConn this week, so there won't be any posts.

But, here is a compilation of scenes involving Ted, the sad sack hospital lawyer, from Scrubs.

Law Music Video: Legal Illegal

In honor of St. Patrick's Day this week's music video is Ewan MacColl's clever Legal Illegal. The video isn't very exciting, but then it doesn't distract from the lyrics.

Standard of Care

What is the "standard of care" - the breach of which must be proven to recover in a medical negligence case?

Try to Fit That Into a One-Hour Prime-Time Slot

Last week the Trademark Trial and Appeal Board of the US Patent Office heard a challenge to the granting of a trademark to the Washington Redskins Football Team for the name "Redskins."  The Lanham Trademark Act prohibits the issuance of a trademark that:

Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute;

 In 1992, Native American activist, Suzan Shown Harjo, challenged the prior issuance of the Redskins trademark on the basis of the Lanham Act language quoted above. In 1999 the TTAB ruled in favor of Harjo and the NFL appealed. In 2003, the US District Court ruled that laches barred the claims as the claimants had waited too long after reaching the age of majority to bring the claim. In 2005, the Court of Appeals upheld the laches ruling as to all but one claimant and remanded the case to the District Court for examination of that claim. The District Court ruled against the final claimant and in 2009, the Court of Appeals affirmed and the US Supreme Court denied cert.

In the meantime, in 2006, another challenge to the trademark was filed by younger Native American claimants who would not be subject to the laches defense. That is the case that was argued to the TTAB last week, 21 years after Suzan Shown Harjo filed her original challenge.

Hopefully, it will not take another 21 years for the legal system to embrace justice and common sense in upholding the challengers' claim against this patently offensive use of this symbol to objectify and denigrate a human race and culture.  It's a shame that the Board has no authority to award damages.

Update: NY Times 10/10/13: here

Suzan Shown Harjo. Source of image:  http://www.ahalenia.com/harjo/index.html 



Washington Redskins graphic. Source of image: High Court Punts Washington Redskins Trademark Case

That's Some Serious Whistleblowing

Portland, Maine downtown business owners can rest easier now that Robert Smith has agreed to a plea deal on his disorderly conduct charges resulting from his serial whistling. Smith agreed to a judge's condition that he not linger in one place while exercising his musical talents. Apparently, Smith's stationary whistling was disturbing nearby businesses. From the Portland Press Herald:

The prosecutor, Trish McAllister, disagreed that Smith's whistling is protected by the First Amendment. A Portland city ordinance says whistling, hooting and other unnecessary noises that "annoy, disturb or injure the health, peace or safety of others" are forms of disorderly conduct.

"The judge and I viewed this as a behavioral issue," she said. "(Smith) was aggressive. He would follow people who gave him a wrong look."

So, at least for now, it's "whistle while you walk" for Smith.

In a similar but entirely unrelated matter Reuters reports: 

A man from Long Island, New York, is facing up to 30 days in jail and a $500 fine after a neighbor complained to police he was laughing too loudly, his lawyer said on Wednesday. 

According to the New York Post:

[The complainant's] wife, Virginia, defended the summonses, saying, “The police investigated and found there was cause. I think the police can answer all your questions. I think the police did what they thought was best.”

Are these really examples of silliness in the law or are these incidents reported in a way so as to make the law seem silly? It's hard to tell.  Probably the most that we can say is  that the law maintains order by encouraging or discouraging certain conduct. Law enforcers have a certain amount of discretion in deciding what laws to enforce and how to enforce them.  If we don't like the way law enforcers employ the law, we would have to rely on administrative and political processes to intervene. Ultimately, society is affected by a confluence of all these factors: law, and administrative and political processes.

The "Portland Whistler" (posted August 2012 - Hey! Who is aggressively following whom?)

Right to Be Stupid

Secretary of State John Kerry recently advised an audience of German students, "in America you have a right to be stupid." Secretary Kerry was referring to the liberty of expression that allows Americans to celebrate their ideas, or the lack thereof, without government censorship. This could be a great way to introduce the topic of limitations on governmental power and the parameters of Commercial Speech.  I often find that students don't initially recognize that the Freedom of Expression keeps you free only from government censorship. It does not mean that you are protected from comment and response by other persons. You are free to speak.  But others are equally free to speak back - and take action where appropriate. And, of course, free speech does not apply in the workplace, where you may be fired for stating your opinion.

John Kerry: Right to be stupid:

A few examples of Americans exercising that right:

Don Imus refers to the Rutgers Women's basketball team as "Nappy Headed Ho's":



Donald Trump saying almost anything:



Westboro Baptist Church (in harmony, yet):


Todd Akin of "legitimate rape" fame:


One of my personal favorites: Jury Duty is Unconstitutional:

Law Music Video: Bill of Rights

This week's Law Music Video features two Bill of Rights songs and a First Amendment homage. Take your pick or use them all.

Pratt & Whitney Blows Whistle on Pratt & Whitney

Aircraft parts company Pratt & Whitney, a subsidiary of United Technologies, has disclosed that an Israeli  division of the company has for years been falsifying the results of parts inspections. The disclosure obviously exposes the company to potential civil liability but may be effective in avoiding any criminal prosecution. In accordance with the publicly released 2003 Justice Department "Thompson" memo on the prosecution of Business Organizations, corporations that effectively self-police wrongdoing may encourage prosecutorial discretion in favor of leniency. If that is the case, then perhaps the memo's release has had a positive impact toward reducing corporate crime.

PDF link to Thompson memo

The Harlem Shake Pink Slip

My fear of LSCB being left out of the Harlem Shake craze has finally been alleviated thanks to Barminco, an Australian mining company.  According to news reports, Barminco fired 15 mine workers for filming and posting a video of the employees performing the Harlem Shake at a mining site.  Several of those fired, merely watched the performance. The workers have allegedly been banned from working at any Barminco site, worldwide. No one has ever suggested that corporate managers possess a sense of humor (except, maybe, for Andrew Mason). If you ask me, I think Barminco should have embraced the video as evidence of how much fun it can be to work in a dark dank hole thousands of feet below the surface of the planet.  But then, no one ever asks me.

What is the Harlem Shake? Read here.  WARNING! Many of the Harlem Shake videos can be risque.  Always preview anything that you show in class.

Watch here (not risque):


 Barminco miners apparently compromising the safety of Barminco's operations:

Yankees Are Baseball's Only True Evil Empire...

...or so ruled a panel of three judges at the  Trademark Trial and Appeal Board.

“The weight of evidence submitted by [the Yankees] clearly demonstrates that the mark BASEBALLS EVIL EMPIRE would be understood by consumers to refer to the New York Yankees.” 
 - decision page 21

And with that, a Long Island woman will have to cease and desist selling tee shirts out of her garage featuring the Yankee logo and the trademarked phrase "Baseball's Evil Empire." The phrase was originally coined by Boston Red Sox owner Larry Lucchino to denigrate the Bronx Bombers.  But in true New York fashion, (I got your 'Evil Empire' right here!") the Yankees have embraced the moniker as a badge of honor, playing The Imperial March from Star Wars at games.

As far as baseball phrases go, it's not exactly, "Let's play two!" but with the backing of the law, it looks like it's going to stick.


The Imperial March:

Is This Another Lawyer Joke?

A judge and a stand-up comedian go to the movies but they only need one ticket. Why is that? Because they are the same person!

In 2008, part time New Jersey municipal court judge, Vince Sicari (a/k/a Vince August), was ordered by the ethics commission to give up his "day" job as a stand-up comic. Sicari has appealed the ruling and the New Jersey Supreme Court heard arguments last week. Read the NY Times article here for details.

In my opinion, having a judge with a sense of humor is a plus.

Law Music Video - Get Some Insurance

Tony Sheridan passed away last week. He had the distinction of having the Beatles as his backup band in the early 1960's. They recorded the below version of Take Out Some Insurance. I included a Jimmy Reed version as well. What a great lead in to your insurance law lecture.