Huggins and Huggins Law, LLC

Be nice on the airplane . . . or lose your license.

2009-10-08T14:10:00.002-04:00

Bad Behavior as Airline Passenger Grounds Attorney from Law Practice

From the LEGAL ETHICS section of the
ABA eJournal
Posted Sep 28, 2009, 05:05 pm CDT By Martha Neil

A South Florida attorney has been temporarily disbarred, by consent, after
allegedly using obscene language, groping a flight attendant and carrying a
7-year-old child down the aisle while the plane was airborne—nearly hitting the
child's head on an exit sign—two years ago as a passenger aboard a Southwest
Airlines flight.

John Michael Moody, 45, will not be able to practice for
five years under the agreement. He earlier pleaded guilty to a federal criminal
charge of intimidating or assaulting a flight attendant on an aircraft
concerning the June 11, 2007 incident and was sentenced to a four-month prison
term, reports the South Florida Sun-Sentinel.

He could not be reached by the newspaper for
comment.

Click here to read the entire article.

http://www.abajournal.com/weekly/bad_behavior_as_airline_passenger_grounds_attorney_from_law_practice

Bloggers: Beware

2009-09-24T10:01:00.002-04:00

From the ABA Journal, Legal Ethics Division:

Too Much Information: Blogging Lawyers Face Ethical and Legal Problems

Posted Sep 14, 2009, 09:52 am CDT; by Debra Cassens Weiss

Updated: Chalk it up to the age of Facebook. Blogging lawyers and judges have landed in trouble with legal ethics regulators and judges, while one blogging lawyer ended up as a defendant in a defamation lawsuit.

The lawsuit began on Sept. 14 in Tyler, Texas, Texas Lawyer reports. It ended Monday with a settlement, before jurors began deliberations, according to IP Law and Business. The plaintiff, intellectual property litigator Eric Albritton, claimed lawyer Richard Frenkel defamed him in anonymous postings on his Patent Troll Tracker blog, written when Frenkel was an in-house lawyer for Cisco Systems.

The suit said Frenkel defamed Albritton by accusing him of conspiring with a federal judicial clerk to alter documents to obtain subject matter jurisdiction in a patent suit. The defamation suit settled after the federal judge overseeing the case ruled Albritton could not win punitive damages unless he proved actual malice.

The New York Times chronicles the ethical travails of other legal bloggers, including Kristine Ann Peshek, fired from her job as an assistant public defender in Illinois and accused in a disciplinary complaint of revealing client confidences in blog posts with thinly disguised references. The Legal Profession Blog was first to report the case.

Peshek didn’t comment to the New York Times, but she told the ABA Journal on Thursday that she disagrees with the assessment that her clients could be identified through her blog. “I would not have posted any information in such a manner that I thought a specific client could be identified, without that client’s permission, or without the information being a matter of public record,” Peshek said. The blog posts identified clients by either their first names, a derivative of their first names, or by their jail identification numbers, according to the disciplinary complaint (PDF).

In other blog posts, Peshek complained that one judge was clueless and another was an ---hole. Criticizing a judge also landed blogging lawyer Sean Conway in trouble, the Times notes. In a conditional plea, Conway agreed to a reprimand for calling a judge an “evil, unfair witch” in a blog post. He claimed in a brief submitted to the Florida Supreme Court that his remarks were protected by the First Amendment, but the court affirmed the disciplinary agreement this April, the Times says.

The Times also cited these examples:

• A lawyer requested a continuance due to a death in the family, but the Galveston, Texas, judge checked her Facebook page and discovered news of a week of drinking and partying. The judge, Susan Criss, told lawyers about the episode at the ABA Annual Meeting.

• Lawyer Frank Wilson of San Diego lost his job and got suspended from practice for 45 days for blog postings he wrote as a juror.

Troll Tracker Defamation Trial Ends in Truce

by Joe Mullin; IP Law & Business; September 23, 2009

After four days of testimony, the "Troll Tracker" defamation lawsuit ended in a confidential settlement the day before the East Texas jury hearing it was set to begin deliberations.

Plaintiff Eric Albritton and defendants Cisco Systems and Rick Frenkel -- a former Cisco lawyer who blogged anonymously as the Patent Troll Tracker -- settled the case Monday night, shortly after Judge Richard Schell ruled that the jurors would have to find "actual malice" on the part of Frenkel and Cisco in order for Albritton to win punitive damages from the tech giant.

None of the lawyers involved in the case would comment on the settlement Monday. Cisco issued a statement Tuesday morning in which it said the dispute between the parties "has been resolved to their mutual satisfaction, and Rick Frenkel and Cisco apologize for the statements of Rick Frenkel on the Troll Tracker blog regarding Eric M. Albritton." Frenkel is now of counsel at the Silicon Valley law firm Wilson Sonsini Goodrich & Rosati.

The jury, which had been scheduled to hear closing arguments and begin deliberations Tuesday, was not in court Monday as Schell considered a motion by Cisco and Frenkel for judgment as a matter of law. In that motion, the defendants argued that Albritton didn't have enough evidence to warrant proceeding to a jury verdict. Schell denied all of the defendants' arguments, except for one: that the plaintiffs had to prove "actual malice" in order to collect punitive damages.

"Actual malice" -- a high standard for a defamation plaintiff to meet -- was established by the Supreme Court in its historic New York Times Co. v. Sullivan decision. To prove "actual malice," a plaintiff must show that the defendant either knowingly published falsehoods as facts, or showed "reckless disregard" for the truth. In general, a plaintiff must be a public figure to trigger the "actual malice" standard. Someone considered a private figure must only prove that a publisher was negligent in its actions in order to win a defamation claim.

Schell had ruled earlier during the four-day trial -- at which Frenkel, Albritton and Ward all testified -- that Albritton was a private figure, and could therefore win his case by proving that Cisco and Frenkel had been negligent. Earlier rulings barred Albritton from seeking damages to his reputation, leaving him to pursue damages for "mental anguish" or, if he proved "actual malice," for punitive damages against Cisco. On Monday, Schell ruled that while Albritton was indeed a private figure, Frenkel's blogging was about an issue of public concern (the work of the court clerk's office), which meant Albritton had to meet the higher standard of "actual malice" in order to qualify for punitive damages.

Throughout the litigation, Frenkel maintained that the two blog posts at the heart of the case, which he wrote about a changed date in the docket in Albritton's ESN v. Cisco patent infringement suit, contained both true facts and constitutionally protected opinion about "abusive" patent litigation in East Texas. On the witness stand, Frenkel apologized for referring to the Eastern District of Texas as a "Banana Republic" in one of the offending posts, which he later revised to eliminate that reference.

A second defamation lawsuit, Ward v. Cisco Systems, has been brought by T. John "Johnny" Ward Jr., another Eastern District patent heavyweight representing ESN in its patent suit against Cisco. That lawsuit has dropped Frenkel as a defendant personally, and continues only against Cisco. It is scheduled for trial in early 2010. The ESN v. Cisco suit that launched the dispute also remains active.

Forgive Student Loans, reports the American Bar Journal

2009-09-06T09:53:00.005-04:00

From the ABA Journal:

Was It Worth It? With Debt of Up to $250K, Some Law Grads Are Dubious

Posted Sep 4, 2009, 01:20 pm CDT
By Martha Neil

Zack Leshetz would like to get married and buy a home.

But his $175,000 in student loan debt is a significant roadblock, reports the Wall Street Journal in a lengthy article about the growing educational debtload being shouldered by
young Americans.

Even though some of his loans are in forbearance, he is living paycheck to paycheck, the 30-year-old Fort Lauderdale, Fla., attorney tells the newspaper. Engaged since March, he is reluctant to schedule a wedding due to the cost.

"I feel like I'm putting my entire life on hold," he says.

And he's far from the only one wondering about the high cost of his apparent academic success.

Kristin Schlaud owes almost a quarter of a million dollars in educational debt after going on from college to earn a juris doctor degree from Wayne State University Law School and a master's degree in real estate from the John Marshall Law School.

"I know I have accomplished a lot, but I wonder if it was all worth it," the 28-year-old tells CNN.

A New York lawyer, Robert Applebaum has been rallying support on Facebook and an advocacy website, Forgive Student Loan Debt, for a proposal that the government
should eliminate educational debt as part of an economic stimulus program, the news agency notes.

Click here to continue reading this great article.

Student Loan Forgiveness? Yes, and stimulate the economy.

2009-09-06T09:45:00.001-04:00

http://blogs.moneycentral.msn.com/smartspending/archive/2009/08/28/should-feds-forgive-student-loan-debt.aspx

Should Student Loans be forgiven?

Should the federal government wipe the slate clean? What do you think? Should the federal government wipe the slate clean? Do students overburdened by the debt they took on deserve some kind of help? What are other solutions?

What are some possible solutions to help those who are overextended -- and to prevent it from happening? Here are some ideas that have been tossed around:

* Allow student loan debt to be discharged in bankruptcy court. (Another site, StudentLoanJustice.org, has made that part of its mission.)
* Provide more education to young borrowers. "Even if someone would have told me 10 years ago that my payments would be $880/month, at that point, could I have really
understood the consequences?" reader "Saddled_With_Debt" said at Consuming Interests.
* Increase grants to needy students.
* Provide more federal aid for those who face huge student loan debt to fill essential occupations, like family practitioners, internists and geriatricians in the medical
field.
* Encourage students to avoid private loans.
* Make student loan forgiveness even more available for those who take public service jobs. "I've heard of programs that forgive student loans to insure a supply of doctors
and teachers for rural areas. That makes economic sense as it is a bonus to attract new applicants, not a bailout," All Financial Matters reader Rick Francis wrote.

Graduates, meanwhile, can take advantage of another new program. In an article at MSN Money, Liz Pulliam Weston described how it works:

(Graduates) have the option to limit payments on federal loans to no more than 15% of their discretionary income or 15% of the amount of their income that exceeds 150% of the
federal poverty level. (For example, the 2009 poverty level for a single person is $10,830, so payments would be capped at 15% of his or her income over $16,245.) Unpaid interest
and principal are added to the loan, but any balance would be forgiven after 25 years of payments.

What do you think? Should the federal government wipe the slate clean? Do students overburdened by the debt they took on deserve some kind of help? What are other solutions?

Don't Die Quietly: Baltimore medics mistakenly declare man dead

2009-08-03T14:53:00.001-04:00

http://www.breitbart.com/article.php?id=D99RIJ680&show_article=1

Baltimore medics mistakenly declare man dead

Breitbart.com
August 3, 2009 02:16PM

BALTIMORE (AP) - Baltimore police say a burglary suspect mistakenly declared dead by medics after he was shot by an officer laid on a convenience store floor for half an hour before anyone noticed he was still alive.

Police spokesman Anthony Guglielmi (goo-lee-EL-mee) says 51-year-old Michael Quarles was shot early Saturday when he lunged at an officer with a long screwdriver. Guglielmi says the officer thought Quarles had a knife.

Guglielmi says emergency medical technicians pronounced Quarles dead at the scene, then left. But officers noticed about 30 minutes later that Quarles was moving and called the medics back to the scene.

Quarles was taken to a trauma center and remained in critical condition Monday.

The medics have been reassigned until an investigation is finished.

http://www.breitbart.com/article.php?id=D99RIJ680&show_article=1

Yikes. Thanks, Drudge Report.
http://www.drudgereport.com/

Tips on How to Avoid an Adoption Scam

2009-07-29T13:56:00.004-04:00

The following article appeared in the Fall 2008 edition of Conceive Magazine and includes a quote from Michigan Adoption Attorney, Joni M. Fixel.

How to Avoid an Adoption Scam
by Joan Fleischer Tamen
as printed in Conceive Magazine Fall 2008

Adoption fraud doesn't happen often, but it does happen. Here's what to look out for, and experts' best advice on how to protect yourself.

Ms. Tamen lists a number of adoption "scams" and also advises how prospective adoptive parents might protect themselves.

Click the link below to read the entire article:
http://www.scribd.com/doc/4817633/Conceive-Magazine-Fall-2008

Thank God for Evolution.

2009-07-19T07:44:00.002-04:00

Thank God for Evolution.

Click on the Video and turn up the volume.

Evolution and Religion awesome together.

Wonderful.

http://thankgodforevolution.com/

Wheels across America - Folks are really NICE.

2009-06-08T07:30:00.005-04:00

College students off and pumping on 4,000-mile bike trip
POSTED 16 hrs ago

CLEVELAND -- A group of 27 cyclists rolled into Cleveland Friday night. Four hundred miles down. Only 3,600 miles to go in their trip across America.

The cyclists, ranging in age from 18 to 23 years, will spend the next two months on the road raising money and awareness about cancer.

It's the ninth year for the 4K For Cancer ride which was started by a student at Johns Hopkins University to honor his father who died of cancer.

"It's hard to think of anybody who hasn't been affected (by cancer)," said Raffi Wartanian. "You're constantly meeting people who were affected and they're telling you their story.

"And you put that on your shoulders and use that to get up the mountains and through the rain," said Wartanian, who is partipating in his second 4K For Cancer ride.

Each of the cyclists raised at least $4,000. The group hopes to donate $110,000 dollars to the Hope Lodge in Baltimore and to cancer research.

Two vans carrying sleeping bags, clothes and donated food accompany the cyclists.

The cyclists rely on churches, YMCA's and community centers for food and lodging.

Cyclist Nicole Pangborn, a pre-med student at Johns Hopkins University, has found motivation and inspiration from the people she's met during the trip.

"We rely completely on donations for lunch and lodging and food for dinner," said Pangborn. "It's like we really don't buy anything. And we go across the country.

"A lot of us haven't encountered that type of generosity," said Pangborn. "It's just unbelievable that people give everything to us because we're doing something for the greater good."
© 2009 WKYC-TV

http://www.facebook.com/ext/share.php?sid=96791987045&h=rve1L&u=6Obtt&ref=mf

I like Ike.

2009-06-06T10:50:00.002-04:00

http://www.army.mil/d-day/

The United States Army Tells the story of the D-Day Invasion of Normandy on June 6, 1944.

It has been 65 years since our bravest and best

"landed along a 50-mile stretch of heavily fortified French coastline to fight Nazi Germany on

the beaches of Normandy, France."

http://www.army.mil/d-day/

Yes, I like Ike.

Nope. I won't fly unless Gary is at the yoke.

2009-06-05T06:42:00.002-04:00

The Horrifying last 14 Minutes of Air France Flight 447

From the New York Post:
By ANDY GELLER, Post Wire Services

Last updated: 9:05 am;June 4, 2009
Posted: 2:50 am;June 4, 2009

First, the autopilot disengaged, and then an alarm warned passengers that all hell was breaking loose on doomed Air France Flight 447.

It was shortly after 11 p.m. Sunday Brazil time and the Airbus 330-200 was flying through terrifying black clouds packing updraft winds of 100 mph.

All planes -- even military ones -- are at risk when buffeted by winds of such ferocity, experts say. Flight 447 was no exception.

Within a span of 14 minutes, its electrical systems and cabin pressure failed, and the plane broke apart and began its dive of death into the Atlantic Ocean with 228 people on board.

Click here to read the article. Be sure to click on the photos link.

http://www.nypost.com/seven/06042009/news/worldnews/jets_horrifying_final_14_minutes_172538.htm

Bronx girl makes good: Appeals judge is first Latina and fourth woman to be nominated to US Supreme Court

2009-06-01T07:10:00.003-04:00

From The Electric New Paper, June 1, 2009

Bronx girl makes good: Appeals judge is first Latina and fourth woman to be nominated to US Supreme Court

PRESIDENT Barack Obama had described her as having an 'understanding of how ordinary people live', and for this, she would make a better judge.

Professor Huggins asks,
"What happens to the Constitution now?"

Click here to read the entire story.

PRESIDENT Barack Obama had described her as having an 'understanding of how ordinary people live', and for this, she would make a better judge.

In his remarks, Mr Obama chronicled Judge Sonia Sotomayor's hardscrabble upbringing and the challenges she's faced as a diabetic, diagnosed when she was a child.

She was told then the disease meant many career options would be closed to her.

Life experience, the President said, is what gives a person a common touch, a sense of compassion and an understanding of how ordinary people live.

Said Mr Obama: 'Well, Sonia, what you've shown in your life is that it doesn't matter where you come from, what you look like or what challenges life throws your way.'

And now, as Ms Sotomayor stands to be the first Latina to serve on the Supreme Court, Mr Obama cited her as an example that no dream is beyond reach in the United States.

Ms Sotomayor's parents were born in Puerto Rico and moved to New York during World War II.

Her father, a factory worker, died when she was 9. Her mother was a nurse.

They lived in the Bronx projects, where drugs and gangs were commonplace in the early days, reported New York Daily News.

Moments after President Obama nominated Ms Sotomayor, 54, a federal appeals judge, on Tuesday, she launched into a touching tribute to her mother, Mrs Celina Sotomayor.

The judge described her mother as the pillar for her success, and the woman who made the tough life they had more bearable.

Life aspiration

She said from the White House podium: 'I stand on the shoulders of countless people, yet there is one extraordinary person who is my life aspiration. My mother has devoted her life to my brother and me.

'I have often said that I am all I am because of her, and I am only half the woman she is.'

She cited her life as '... a story of what hope, hard work, education and dedication to make a better life can achieve'.

When her mother lost her husband, she faced a prospect of raising her two children on a single paycheck. She worked harder, or about six days a week.

Ms Sotomayor said that despite the fact that she and her brother were living in the projects, her mother's emphasis on education meant that they lived wonderful, full lives, liberated from the shackles of poverty.

Mr Obama had also earlier mentioned Celina's role in her children's education, saying the mother bought 'the only set of encyclopedias in the neighbourhood'.

Ms Sotomayor said her mother revelled in what few studies were available to girls back then, when most on the island were illiterate.

Her mother would memorise each lesson by pretending to teach the trees in her backyard with a stick as a pointer.

Through her determination, Mrs Sotomayor managed to rebuild her life with a new husband and a new job at the Prospect Hospital as a telephone operator.

And it wasn't just her children's education that she cared about.

One day, her mother sat her children down and asked for their help in sending her back to school to become a registered nurse who could make more money.

Ms Sotomayor said that it was this spirit of determination that her mother had that taught her to dream and push on in her career as well.

Not only had she achieved success, but her brother too - he is a physician and living in New York.

Why speak about the past?

She said that in order to serve her country well, it was crucial to remember the resilience of those who inspired her, as well as the one thing that has defined her - her background and roots.

Struggles and hardships

While urging others to continue learning their own histories and their country's history, she said: 'But - and this is a very big but - do not forget your backgrounds and the cultures that you come from. Don't forget the struggles and hardships of your parents and grandparents.'

And her mother, who was present while the address was given, dabbed away her tears.

Mrs Sotomayor had been pleasantly surprised when the announcement was made - she was only asked to journey to Washington, but was not told about the nomination beforehand.

Of her daughter's nomination, she told The Sun Sentinel that it was in her 'wildest dreams. I would never have imagined it'.

Mrs Sotomayor added: 'I was trembling from my emotions. I knew she was going to have a good job. I never knew she would be such a great success.'

Describing herself as 'overwhelmed', she told New York Daily News: 'She is the most honest person I have ever known. I wish I could be like her. She is so good, so giving.'

But pride in being a Latina landed the younger Sotomayor in trouble when her comments in a 2001 lecture were construed as 'racist'.

In an address at the University of California, Berkeley then, she had said: 'I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn't lived that life.'

The remark was in the context of her saying that 'our gender and national origins may and will make a difference in our judging'.

Defending her, Mr Obama said: 'I'm sure she would have restated it.'

And going back to his argument of why her life experience mattered, he said: 'But if you look in the entire sweep of the essay, she was simply saying that her life experiences will give her information about struggles and hardship that people are going through - that will make her a good judge.'

Copyright © 2005 Singapore Press Holdings Ltd. Co. Regn. No. 198402868E. All rights reserved.

http://tnp.sg/printfriendly/0,4139,203721,00.html

Waffle House: Too hard to get a job? Or too difficult to get good help?

2009-05-13T19:41:00.002-04:00

Eggs, Hashbrowns and a Gun?

Matt Drudge recommended this story.

http://www.wltx.com/news/story.aspx?storyid=73684&catid=2
(Wow. Click on the Video to start the story for yourself.)

Clarendon County (WLTX) - A Clarendon County waitress is accused of shooting a customer at the restaurant after the two had a dispute.

Yakeisha Ward, 29, is charged with assault and battery with intent to kill.

An early morning run for breakfast at the Waffle House on Paxville Highway in Manning turned terribly wrong for Crystal Samuel.

"I thought I was gonna get me an All-Star," says Samuel. A popular meal on the menu. "Grits, sausage, toast, eggs and a waffle," says Samuel.

She didn't get what she came for. Instead, she says while she waited for her order, her friends started eating. That's when Samuel says she was told they couldn't eat from carryout trays inside the restaurant.

"I said what is your fuss about. I said we haven't paid for our food. She (Ward) said well you all got to leave. How you want us to leave and we ain't paid for the food yet," says Samuel.

That's when it got ugly. Samuel says she threw a waffle at the waitress. "I did actually throw some food but it didn't hit her," says Samuel. "That's when she (Ward) jumped across the counter and we got into it," says Samuel.

Clarendon County Sheriff Randy Garrett says the altercation continued outside where he says Ward got a gun from her car and a gun magazine from her trunk.

"It's poor judgment on her part trying to settle this matter with a weapon. either way she had time to think about what she was doing when she was walking to her car," says Garrett.

Investigators say Ward's gun discharged during the altercation. They say a bullet fragment struck Samuel in the arm.

"Deputies were close by when they rolled up in the parking lot the victim and the suspect were still engaged in a fight," says Garrett.

Before it ended, authorities say Ward struck the victim in the head with the gun.

"She got the last lick,"says Samuel. Meanwhile Ward has bonded out of jail. On Tuesday afternoon, News 19 found her inside the Waffle House where the incident happened.

She declined to talk to us on camera but says she got out of jail after paying $500. As for Samuel, she has only one thing to say about Waffle House. "bad customer service," says Samuel.

Investigators say it appears that Ward's gun was legally purchased.

Posted By: Tony Santaella 5/13/2009 1:49:53 PM

Click here to go to the video story.

Yikes.

Which is the REAL STORY??

2009-05-09T11:42:00.004-04:00

Which is the REAL STORY??

OPRAH's KFC Catastrophe OR is her PETA award the REAL story?
Reuters Fri May 8, 2009 at 9:47am EDT

Oprah Winfrey's decision to put her name on KFC's online coupon promotion turned quickly into a "PR nightmare," as described by QSRweb, which covers the quick-service restaurant industry.

The nightmare isn't, as you might think, due to Oprah's hypocrisy in lending her name to one of the worst chicken-abusers in the food business, but rather to the overwhelming response of consumers demanding their promised free food. Gawker spread a rumor that there were "riots" breaking out on Wednesday at a Midtown Manhattan KFC outlet.

There weren't, but there were a lot of angry people who thought they would get a free two-piece Kentucky Grilled Chicken meal but didn't because the store had run out. The coupons were promoted both on The Oprah Winfrey Show and at Oprah.com.

A spokeswoman from KFC owner Yum Brands (YUM) told the Louisville Courier-Journal that the promotion created "extreme" demand nationwide.

So extreme that KFC President Roger Eaton had to write a note of apology to would-be freeloaders who flocked to Oprah's Web site to download their coupons. "We are so sorry," he wrote, "but due to the overwhelming response to our FREE Kentucky Grilled Chicken meal coupon, we can no longer redeem the free coupon at this time." The company would offer rain checks, along with a free Pepsi, to those who already had coupons, he assured.

* * *

Meanwhile, almost lost amid all the hoopla is the question of why Oprah would lend her name to KFC, which is a primary target of animal rights activists who say the chain uses suppliers—chiefly Tyson Foods (TSN)—that house chickens in deplorable conditions before killing them in a deplorable manner.

Oprah has repeatedly railed against factory farming and was once targeted by the meat industry for her on-air avowal to avoid burgers.

Paula Crossfield of Civil Eats wrote that because "Oprah has marketed herself as one who cares about animals, even getting a 'Person of the Year' award last year from PETA, this KFC campaign is a serious disappointment to say the least."

Not that we should be shocked. Oprah has repeatedly shown that her principles are flexible.

Click here to read the full article

http://www.reuters.com/article/wtUSInvestingNews/idUS1284981420090508

2009-05-03T22:12:00.001-04:00

Blog May 3, 2009

Federal Government and FDCPA: Dealing with Debt Collectors:

http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre19.shtm

From the US Government (FTC):

The Fair Debt Collection Practices Act is the federal law that dictates how and when a debt collector may contact you.

A debt collector may not call you before 8 a.m., after 9 p.m., or while you’re at work if the collector knows that your employer doesn’t approve of the calls.

Collectors may not harass you, lie, or use unfair practices when they try to collect a debt.

And they must honor a written request from you to stop further contact.

http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre19.shtm

In Maryland, the Discovery Rule Applies to Breach of Contract Cases

2009-04-17T18:34:00.002-04:00

Discovery Rule Applies to Breach of Contract Cases

By Stephen W. Thibodeau, Esquire

Reprinted with permission, The Lord & Whip Report, Vol.XXII No. I, June 30, 2004

When does the statute of limitations begin to run in a breach of contract case?

From the time of the breach? When the breach is discovered by the Plaintiff?

Is either acceptable?

This was the central question presented in the recent

case in the Maryland Court of Special Appeals of Bacon and Associates, Inc.

v. Rolly Tasker Sails (Thailand) Co., Ltd. In that case, the Court of Special

Appeals expanded the applicability of the “discovery rule” to contract as well

as tort cases.

You can click here to go directly to this article or continue reading.

************************************************

Discovery Rule Applies to Breach of Contract Cases
By Stephen W. Thibodeau, Esquire

Reprinted with permission, The Lord & Whip Report, Vol.XXII No. I, June 30,

2004

When does the statute of limitations begin to run in a breach of contract case?

From the time of the breach? When the breach is discovered by the Plaintiff?

Is either acceptable? This was the central question presented in the recent

case in the Maryland Court of Special Appeals of Bacon and Associates, Inc.

v. Rolly Tasker Sails (Thailand) Co., Ltd. In that case, the Court of Special

Appeals expanded the applicability of the “discovery rule” to contract as well

as tort cases.

The “discovery rule” has traditionally been applied in civil actions.

Owens-Illinois v. Armstrong, 326 Md. 107, 121 n. 3, 604 A.2d 47, 54 n.3, cert.

denied 506 U.S. 871, 112 S. Ct. 204, 121 L. Ed. 2d 145 (1992). Under

Maryland’s discovery rule, the three-year statute of limitations period begins to

toll when the Plaintiff discovers, or should have discovered, the alleged injury.

Ver Brycke v. Ver Brycke, 2004 Md. Lexis 44. The discovery rule has regularly

been applied in tort cases, but its role in breach of contract cases has been

unclear. In Bacon, the Court of Special Appeals has now clearly held that the

discovery rule applies to breach of contract cases.

Rolly Tasker Sails, a Thai corporation, began a business relationship with

Annapolis-based Bacon and Associates in 1971. Bacon and Associates is a

retailer of new and used sails. In 1971, Bacon and Associates and Rolly

Tasker Sails entered into a consignment agreement in which Tasker would

“ship sails to Bacon with a bill of lading and an invoice stating the net price for

each sail.” Bacon, pg.4.

After receiving each shipment, Bacon would inspect and measure the sails

and assign a price to each as well as acknowledge receipt of the sails. Once

sold, Bacon would issue a check to Tasker for the net invoice price of the sail.

This arrangement continued until approximately July 1998. In its complaint,

filed in 2001, Rolly Tasker Sails alleged that Bacon stopped making payments

on sales of Rolly Tasker Sails’ consigned merchandise around July 1998. At

trial, the Court gave the following instruction:

There is a three-year statute of limitations which is applicable to the Plaintiff’s

claims. That means that suit must be filed within three years of when the

alleged wrong occurred. This suit was filed on June 29th of 2001.

If a party is not likely to know, however, that he or she has been injured or

damaged at the time the wrong occurred then the cause of action does not

accrue until the party learns or as a reasonable person should have learned [of

the] damage.

If you find that the Plaintiff knew or should have known that any payment was

due prior to June 29th, 1998, in other words that they had that knowledge prior

to June 29th, 1998, then the Plaintiff cannot recover as to those particular

payments.

Bacon, pgs. 16-17.

The jury returned a verdict in favor of Rolly Tasker Sails, finding that its claims

against Bacon and Associates were filed within three years of when the breach

of contract claim arose. In the appeal that followed, Bacon and associates

relied on Bragunier Masonry Contractors, Inc. v. Catholic Univ. of Am., 368 Md.

608, 796 A.2d 744 (2002), to support their core argument that the discovery

rule does not apply in contract cases. The Court, however, indicated that

Bragunier merely stood for the premise that when the date of the breach and

the discovery of the breach are the same, the discovery rule is satisfied.

Bacon, pg. 20. In other words, the Court indicated that Bragunier only stood for

the proposition that the discovery rule was inapplicable in cases where the

breach and the discovery of the breach were simultaneous.

The discovery of the breach in Bacon was not simultaneous with the breach

itself. Indeed, Rolly Tasker Sails was wholly dependent upon Bacon and

Associates to learn when a sale of their merchandise would take place based

upon the consignment arrangement they created and operated under. As the

Court indicated, if Bacon sold a consigned sail but did not advise Rolly Tasker

Sails of the sale or remit the net invoice price to Rolly Tasker Sails, Rolly

Tasker Sails would have no way of knowing that the contract breach had

occurred. Therefore, it was only after the discovery of the breach that Rolly

Tasker Sails would have a cause of action. Under these circumstances, the

Court found, Rolly Tasker Sails’ claims were timely filed and the jury verdict

was affirmed.

With the Bacon case, the Court of Appeals made clear that application of the

discovery rule in a breach of contract case now falls into a two-part test. The

question to be asked is whether the breach of contract and the discovery of

the breach are simultaneous. If so, the inquiry ends, and the discovery rule is

inapplicable. If not, the discovery rule will apply in cases where the breach of

contract is or should have been discovered after the actual breach, and the

statue of limitations will begin to run at the time the breach was or should have

been discovered.

This decision has expanded the potential liability for defendants. Indeed,

potential plaintiffs in corporate litigation have been given a powerful new tool,

one that was previously undefined, in applying the discovery rule to breach of

contract cases. Corporate defendants and litigators alike will need to remain

extra vigilant in breach of contract cases to determine whether or not the

discovery rule applies to the tolling of the statute of limitations in a given case.

Steve Thibodeau is an associate attorney at Lord & Whip who specializes in

general civil litigation, insurance defense and commercial litigation. You may

e-mail Steve at thibodeau@lordwhip.com.

Lord & Whip, A Professional Association, 36 S. Charles St., 10th Floor,

Baltimore, MD 21201

(410) 539-5881 | FAX (410) 685-6726 | www.lordwhip.com

Top 10 DUI Mistakes

2009-03-09T15:40:00.001-04:00

Top 10 DUI Mistakes
(from the Bickerton Law of Pittsburgh website)

1. Not hiring an attorney. An experienced attorney will be able to challenge the evidence in your case. Even if you plan on entering a plea, an attorney will be able to negotiate a more favorable sentence.

2. Not hiring an experienced DUI Defense Lawyer. Every lawyer has different levels of specialty. An experienced DUI attorney knows how to challenge the types of evidence that are unique to DUI law.

3. Not hiring an experienced DUI Defense Attorney immediately after you've been arrested or charged with Drunk Driving. If you wait to hire an attorney, you may jeopardize your chances of getting the right result. With the passage of time, memories fade, the scene of the incident changes, and exculpatory evidence disappears.

4. Not realizing that the police have no obligation to be honest with you. In other words, the police can lie to you.

5. Not challenging the first offer made by the District Attorney's Office. The State wants to dispose of your case as quickly as possible. Don't let them treat you like another statistic.

6. Not having a preliminary hearing. The preliminary hearing (prelim) is a very important opportunity to get the first crack at discovery and to test the strengths and weaknesses of the State's case against you.

7. Not challenging the validity of the traffic stop or DUI checkpoint. The police must follow the rules, too.

8. Not challenging the Standardized Field Sobriety Tests (SFSTs). The police would have you believe that the SFSTs are simply pass or fail...It's not that simple!

9. Not challenging the chemical test results. There are procedures that must be followed to ensure that the results are accurate and admissible in court proceedings.

10. Not caring about your case. The defense of your case is a team effort. If you want the best result, you need to actively participate in your own case.

Law Dean Says Schools ‘Exploiting’ Students Who Don’t Succeed

2009-01-27T11:05:00.001-05:00

Law Dean Says Schools ‘Exploiting’ Students Who Don’t Succeed
Posted Jan 20, 2009, ABA Law Journal
By Debra Cassens Weiss

Law schools are “exploiting” many students who aren’t successful, according to a law school dean who spoke at a program on law school rankings earlier this month.

“We should be ashamed of ourselves," said Richard Matasar, dean of New York Law School.

Matasar said schools need to take responsibility for the failures of their students, according to an account of his Jan. 9 remarks by TaxProf Blog. Matasar said a law school education can cost as much as $120,000 for a students who are making a “lottery shot” at being in the top 10 percent of their class so they can get high-paying jobs.

He spoke during a program sponsored by the Association of American Law Schools that is available in a podcast. TaxProf Blog noted Matasar’s remarks and highlighted a Forbes article that questions whether students are being misled into believing that large school debt translates into a life of economic privilege. The article featured a lawyer couple divorcing amid overwhelming stress because of $190,000 in student debt.

“We own our students' outcomes," Matasar said at the AALS program. "We took them. We took their money. We live on their money. … And if they don't have a good outcome in life, we're exploiting them. It's our responsibility to own the outcomes of our institutions. If they're not doing well ... it's gotta be fixed. Or we should shut the damn place down. And that's a moral responsibility that we bear in the academy.”

At 50 law schools, 20 percent of the students either flunked out, can’t find jobs or have unknown outcomes, according to another speaker at the program, Indiana University law professor William Henderson. TaxProf Blog also transcribed some of his remarks.

Matasar questioned whether students are beginning to understand that law school does not guarantee a good job. He said registrations for the law school admissions test are flat or below the norm for this year. “That's never happened in a downturn in the economy before,” he said. “They're catching on. Maybe this thing they are doing is not so valuable. Maybe the chance at being in the top 10 percent is not a good enough lottery shot in order to effectively spend $120,000 and see it blow up at the end of three years of law school.”

The sh-t is flying in Florida

2009-01-15T13:19:00.002-05:00

Feces-throwing monkey on the loose in Tampa Bay

CLEARWATER, Fla. (AP) - Wildlife officials said a rhesus monkey known to throw feces when mad is on the loose in Tampa Bay. Authorities have been trying to capture the primate since Tuesday afternoon, but it managed to evade a bucket truck and tranquilizer dart.

Gary Morse with the Florida Fish and Wildlife Conservation Commission says the adult male is thought to have escaped from an unlicensed source. It was last seen in Clearwater.

The monkey is not considered dangerous.

http://www.breitbart.com/article.php?id=D95N55DG0&show_article=1

Read 25 Things Lawyers Need to Know in Representing Personal Injury Clients in Maryland

2009-01-04T13:31:00.000-05:00

http://www.millerandzois.com/25autocases.html

Read 25 Things Lawyers Need to Know in Representing Personal Injury Clients in Maryland
By Laura G. Zois

Ms. Zois served many years at various insurance companies in Maryland. She now practices as a Plaintiff's attorney in Personal Injury cases. What did Ms. Zois learn the first seven years that has been invaluable knowledge to her in the last four?

She writes:

"The same mistakes were being made over and over again; recognizing this aided my defense of the insurance companies and prevents me from making those mistakes as a Maryland personal injury attorney. The best way to increase the value of your case is to avoid these weaknesses to the largest extent possible. The cleaner a case is presented, the better the settlement offer or verdict. This article is not intended to be a hornbook on how to handle an auto tort case. It is my 'best practices' learned from trying personal injury cases for both sides. "

Click her e to continue reading.

Magazine Lists 50 Law Schools With Best Financial Aid Ratios [And Cooley is Number One!]

2008-12-31T11:06:00.001-05:00

Magazine Lists 50 Law Schools With Best Financial Aid Ratios [And Cooley is Number One!]

Posted Oct 10, 2008, 02:29 pm CST
By Martha Neil
as reported in ABAJournal Magazine

A magazine for law students has made a list of the nation's 50 most generous ABA-accredited law schools, as far as their ratio of financial aid to tuition is concerned.

The National Jurist ranking—which puts Michigan-based Thomas M. Cooley Law School at the top of the list—is based on a ratio of how much they hand out in grants and scholarship, compared to tuition, explains the TaxProf Blog.

Cooley won top honors by a huge margin, with a ratio of 93.9 percent. It is followed by the University of Toledo College of Law in the No. 2 spot, at 61.4 percent, and Liberty University School of Law, in Virginia, at 51.2 percent.

Although a number of highly regarded state university law schools made the list, none of the nation's most renowned private institutions is included, presumably because of their hefty tuition costs.

Probably the best-known name on the list is the University of Virginia School of Law. It squeaked in at number 50, with a ratio of 23.2 percent.

Click here to continue reading.

Don’t Feed the Inmates: Arrested Lawyer Learns Lesson the Hard Way

2008-12-24T11:50:00.001-05:00

Don’t Feed the Inmates: Arrested Lawyer Learns Lesson the Hard Way
Posted Dec 22, 2008, 12:36 pm CST
By Debra Cassens Weiss

An Arizona lawyer may have a sour taste in his mouth after being arrested for passing sweets to a client in court.

Lawyer Damon Rossi of Prescott is accused of giving his shackled client a piece of candy during a court hearing, even though two detention officials told him not to do it.

Rossi was arrested at his home last Thursday, a day after the candy caper, according to spokesman Dwight D'Evelyn of the Yavapai County Sheriff's Office.

Click here to continue reading.

Be rational in your arguments

2008-12-14T13:04:00.002-05:00

Justice Souter Calls Lawyer’s Argument ‘Utterly Irrational’

Posted Dec 10, 2008, 06:07 am CST
By Debra Cassens Weiss

A lawyer for the state of Tennessee defending prosecutors’ decision to withhold evidence in a death penalty trial encountered skeptical and indignant questioning from several justices on Tuesday.

“There were flashes of incredulity and anger from justices” during the oral arguments, the New York Times reports. At issue is when federal courts may reconsider state court rulings in death penalty cases, according to the story. But oral arguments focused on prosecutors’ failure to turn over the evidence.

The defendant, Gary Cone, had admitted murdering a Memphis couple, but his lawyer had claimed he committed the crime in an amphetamine psychosis, the Times says. Prosecutors called the defense “baloney” while withholding police reports and witness statements from the defense saying Cone was a heavy drug user.

The U.S. Supreme Court has twice upheld the death sentence for Cone, but arguments Tuesday raised the possibility that this time the court will overturn it, the Washington Post reports.

Jennifer Smith, a lawyer in the state attorney general's office, faced tough questions from Justice Stephen G. Breyer about why the evidence was withheld, the Post says.

Click here to continue reading.

http://www.abajournal.com/weekly/justice_souter_calls_lawyers_argument_utterly_irrational

Encoded ammunition database -- coming soon to your state

2008-12-08T12:09:00.002-05:00

It was predicted and here it is. If you live in one of these states
the hour approaches for you. If you live elsewhere get ready because
this bill is coming to your state very soon, or so I fear.

Remember
how the Obamanation said that he wasn't going to take your guns?

Well, it seems that his minions and allies in the anti-gun world have no
problem with taking your ammo!

The bill that is being pushed in 18 states (including Illinois and Indiana) requires all ammunition to be encoded by the manufacture a data base of
all ammunition sales.

So they will know how much you buy and what calibers. Nobody can sell any ammunition
after June 30, 2009 unless the ammunition is coded.

Any privately held uncoded ammunition must be destroyed by July 1, 2011.
(Including hand loaded ammo.) They will also charge a .05 cent tax on
every round so every box of ammo you buy will go up at least $2.50 or more!

If they can deprive you of ammo they do not need to take your gun!

This legislation is currently pending in 18 states: Alabama , Arizona,
California, Connecticut, Hawaii, Illinois, Indiana, Kentucky, Maryland,
Mississippi, Missouri, New Jersey, New York, Pennsylvania, Rhode Island,
South Carolina, Tennessee, and Washington .

To find more about the anti-gun group that is sponsoring this legislation

and the specific legislation for each state, go to:

http://ammunitionaccountability.org/Legislation.htm

The Top 10 Killer Deposition Questions

2008-12-02T17:50:00.002-05:00

The Top 10 Killer Deposition Questions

From David Newdorf's Blog

One of the prime reasons to spend the time and money to depose an adverse witness is to gather impeachment material. Other than hiring a private investigator to delve into the witness’s past, the deposition is the most effective tool in the lawyer’s arsenal for uncovering dirt and chipping away at credibility. That includes attacking an eye-witness account, challenging an unfavorable opinion, exposing bias, and undermining believability.

Yet most lawyers don’t ask all of the basic, open-ended questions that could help achieve their impeachment goals. In every deposition, there are questions tailored to the facts of the case, whether it is a business dispute or personal injury claim. But many (if not all) of these “killer” questions should be asked of adverse witnesses in every type of case. Many times you will strike out. That’s okay, because when you do connect with one of these questions, the result is likely to be a solid base hit – and occasionally a grand slam. The answers to these basic questions can be so damaging to the opponent’s case that the litigation will end on terms favorable to your client. And isn’t that the goal?

The Top 10 Killer Deposition Questions
http://www.newdorf.com/litigation-tips/top_ten_killer_deposition_questions

Get Started in the Shooting Sports

2008-11-26T11:54:00.000-05:00

Forty million Americans enjoy the shooting sports annually. But for newcomers the biggest challenge is not knowing how to get started. In fact, our research shows 48,000,000 men and women are interested in shooting and are simply waiting for an invitation.

Getting the right introduction can ensure a quality experience and a lifetime of enjoyment. For many participants this introduction comes from friends, family members and acquaintances. For others the first step is to find a shooting range that offers introductory courses and quality instruction.

http://www.firstshots.org/getstarted.html

Law Prof Drops Defamation Suit against Students over Racism Claims

2008-11-23T12:20:00.001-05:00

Law Prof Drops Defamation Suit against Students over Racism Claims

Posted Nov 17, 2008, 06:32 am CST

By Debra Cassens Weiss

A law professor who sued two former students for defamation has dropped his suit after the school’s interim dean said there is no evidence he is a racist.

Click here to continue reading.

http://www.abajournal.com/weekly/law_prof_drops_defamation_suit_against_students_over_racism_claims

Fair Debt Collection Practices Act (FDCPA) text avalable

2008-09-13T10:55:00.003-04:00

The Federal Trade Commission (FTC) has kindly made available the entire text of the Fair Debt Collection Practices Act (FDCPA).

The text of the act may be downloaded for printing and review at this website.

It is a good read, and a valuable resource for anyone who is interested in the actual text of the law.

http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre27.pdf

If you ride the bus, then you may lose your head.

2008-08-29T17:54:00.003-04:00

Passenger decapitated on a bus in Canada, witnesses say.

Last Updated: Thursday, July 31, 2008 | 6:23 PM ET http://www.cbc.ca/canada/story/2008/07/31/greyhound-transcanada.html

CBC News

A 40-year-old man is in custody in Manitoba after a young man was stabbed — and, witnesses said, decapitated — aboard a Greyhound bus travelling through the province overnight.

Click here to continue reading the gruesome details.

Do I continue taking those overnight bus journeys?

Passenger decapitated on a bus in Canada, witnesses say.

Last Updated: Thursday, July 31, 2008 | 6:23 PM ET Comments1942 Recommend3269

CBC News

A 40-year-old man is in custody in Manitoba after a young man was stabbed — and, witnesses said, decapitated — aboard a Greyhound bus travelling through the province overnight.

Click here to continue reading the gruesome details.

Shriners of North America helping kids

2008-08-18T11:01:00.003-04:00

Shriners of North America

--------------------------------------------------------------------------------

Shriners of North America is an international fraternity based on fun, fellowship and the Masonic principles of brotherly love, relief and truth. There are approximately 375,000 members from 191 temples (chapters) in the U.S., Canada, Mexico and the Republic of Panama

Shriners of North America support Shriners Hospitals for Children, a one-of-a-kind international health care system of 22 hospitals dedicated to improving the lives of children by providing specialty pediatric care, innovative research and outstanding teaching programs. Since 1922, Shriners Hospitals for Children have significantly improved the lives of more than 865,000 children.

If you hold the title of Master Mason in Freemasonry, you qualify and are invited to join the Shriners.

Click here to read more.

BLOG August 18 2008

Shriners of North America

--------------------------------------------------------------------------------

Shriners of North America is an international fraternity based on fun, fellowship and the Masonic principles of brotherly love, relief and truth. There are approximately 375,000 members from 191 temples (chapters) in the U.S., Canada, Mexico and the Republic of Panama

Shriners of North America support Shriners Hospitals for Children, a one-of-a-kind international health care system of 22 hospitals dedicated to improving the lives of children by providing specialty pediatric care, innovative research and outstanding teaching programs. Since 1922, Shriners Hospitals for Children have significantly improved the lives of more than 865,000 children.

If you hold the title of Master Mason in Freemasonry, you qualify and are invited to join the Shriners.

Click here to read more.

When will the Red Cedar River reach the flood stage?

2008-07-28T05:23:00.007-04:00

For a geology fanatic like me, this stuff is wonderful.

Everyone who knows me well enough, also knows that I love my earth.

The National Weather Service constantly checks the Red Cedar River. According to the United States Government, the Red Cedar River has flooding potential. Check out this photo of the Red Cedar River. Give credit to The Advanced Hydrologic Prediction Service of the National Weather Service for some awesome photography.

The National Weather Service prepares its forecasts and other services in collaboration with agencies like the US Geological Survey, US Bureau of Reclamation, US Army Corps of Engineers, Natural Resource Conservation Service, National Park Service, ALERT Users Group, Bureau of Indian Affairs, and many state and local emergency managers across the country.

Check out these gorgeous photos, prepared by the National Weather service

The Weather Forecast Office is located in Grand Rapids, Michigan.

And the Advanced Hydrologic Prediction Service is at www.weathergov/ahps

What is an IOLTA?

2008-07-25T06:50:00.007-04:00

IOLTA means: Interest on Lawyer's Trust Account.

In Maryland, the Maryland Legal Services Corporation of the Maryland State Bar Association has posted a LIST OF APPROVED MARYLAND IOLTA FINANCIAL INSTITUTIONS.

According to Maryland Rule 16-610, effective April 1, 2008, all Maryland financial institutions offering IOLTA must pay interest rates on Attorney IOLTA that are comparable to rates paid on similarly situated non-IOLTA accounts (Maryland Rules of Procedure 16-610).

The List is updated frequently.

Is this a "textbook property" easement issue?

2008-07-20T07:21:00.004-04:00

Do you see Easement Number one, and easement Number two to the LEFT of Number one?

And do you see the No trespassing sign at the bottom of the lane?

Does that look like the beginning of a FENCE to block the entrance to the farm lane?

And do you see the mailbox to the left of the easement? Do you think the US Post Office recognizes that easement as the "entrance" to the home on the farm lane?

Would the US Postman deliver mail to a "Posted - No Trespassing" empty lot?

Great Lakes Outdoors Foundation Established.

2008-07-16T11:38:00.006-04:00

Yippie!

Established.

Now let's get some more people outdoors.

NY BAR EXAM takers for July, 2008: Warning !!

2008-07-08T09:28:00.001-04:00

From the New York State Board of Law Examiners: consider this as an offer of warning:

In the event [that] any technical difficulties occur during the bar examination, you must handwrite your essay answers in the answer books provided and no additional time may be allowed. If you choose to continue to use your computer to write your essay answers after experiencing technical difficulties, or when you have been instructed not to do so, you do so at your own risk.

Read for yourself, from the BOLE webpage:

New York State Board of Law Examiners
NOTICE TO PARTICIPANTS
IN THE NEW YORK BAR EXAMINATION
LAPTOP PROGRAM

This notice is intended to alert participants in the New York bar examination laptop program of the risks involved in such participation, the procedures to be followed in the event problems are encountered, and the potential consequences of problems should they occur.

The New York State Board of Law Examiners ("Board") does not own or maintain the software used for the laptop program. You are required to purchase and download the software directly from the third party software vendor, Examsoft Worldwide, Inc. The Board cannot guarantee the performance of the software furnished by the private software vendor.

You must provide your own computer, and that computer must meet or exceed the minimum system requirements published by the Board and the software vendor on their websites.

Technical difficulties may occur before, during or after the bar examination. Technical difficulties may include hardware or software malfunctions, data saving or retrieval problems, operator errors, upload or download problems, or the loss of electrical power at the examination facility. In the event any technical difficulties occur during the bar examination, you must handwrite your essay answers in the answer books provided and no additional time may be allowed. If you choose to continue to use your computer to write your essay answers after experiencing technical difficulties, or when you have been instructed not to do so, you do so at your own risk.

This Professor says: YIKES! Do you want to risk your last four years of Law School and another year without practice to a faulty Laptop system? Ask your family, and double-check that your family is in a position to support you for another year without the pay due to a Lawyer.

After you check it once, just check it twice, please.

2008-07-06T06:23:00.002-04:00

Heads up to my Advanced Writing students: Do NOT release your brief until you have checked everything for accuracy.

Justice Dept. Admits Error in Not Briefing Court

By Linda Greenhouse of The New York Times, July 3, 2008
WASHINGTON — In a highly unusual admission of error, the Justice Department acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime.

“It’s true that the parties to the case missed it, but it’s our responsibility,” the department’s public affairs office said in a statement.

“We regret,” the statement said, “that the department didn’t catch the 2006 law when the case of Kennedy v. Louisiana was briefed.”

In that case, decided June 25 by a vote of 5 to 4, the court ruled that the Constitution prohibits the death penalty for the rape of a child. Justice Anthony M. Kennedy’s majority opinion was based in part on the conclusion that because child rape was a capital offense in only six states, and not under federal law, the death penalty for the crime did not meet the “evolving standards of decency” by which the court judges capital punishment.

Justice Kennedy’s conclusion about the absence of federal law was mistaken. Not only did Congress add child rape to the military death penalty in 2006, but President Bush, in an executive order last September, added the new provision to the current version of the Manual for Courts-Martial.

The solicitor general’s office, which represents the federal government before the Supreme Court, did not file a brief in the case, and none of the 10 briefs that were filed informed the justices of the new federal law.

Yikes and Yikes again. And I am so glad that MY name is nowhere in that mess.

Click here to continue reading the NY Times article.

Happy Birthday America - The Star Spangled Banner

2008-07-04T07:21:00.003-04:00

Visit the American History Museum on the mall to learn about Our Flag.

http://americanhistory.si.edu/ssb/2_home/fs2.html

The Star Spangled Banner

A battle…

A song …

A symbol …

The Star Spangled Banner

The Smithsonian’s National Museum of American History is the home of an American treasure—the Star-Spangled Banner, the flag that inspired our national anthem. In 1998 we launched a significant effort to preserve this icon, which has been endangered by time and exposure to pollution and the elements.

In this Web site, you can discover the history of the Star-Spangled Banner, consider the flag’s symbolism, learn about the conservation process, and explore our educational offerings.

When I worked at the NMAH, Dr. Bedini was very much alive, although he suffered from COPD. He will always remain the most inspiring person in my life.

http://americanhistory.si.edu/ssb/2_home/fs2.html

We are 232 years young.

Blog July 4 2008

The straight skinny on the Second Amendment decision

2008-07-01T23:49:00.004-04:00

Do you want the STRAIGHT SKINNY on the Second Amendment?

Click on David Hardy's blog and get the stuff right from the man who wrote the winning argument.

He will set you in the right direction.

The Collateral Source Rule applies in Maryland

2008-06-30T07:06:00.014-04:00

My Advanced Legal Writing students (at Thomas M. Cooley Law School) have repeatedly asked me to provide a sample brief that I would recommend. As a result of their constant questioning, I offer two opposing Amicus Curiae briefs.

Opposing parties filed Amicus Curaie briefs in a case regarding one heartbreaking and tragic CSX Rail Road injury case – sad, but interesting and very telling. Haischer v.CSX Transportation, Inc., 381 Md. 119 (2004).

The Maryland Trial Lawyers' Association (MTLA) filed a brief on behalf of the injured engineer.

The Association of American Railroads (AAR) filed a brief on behalf of CSX Railroad.

In addition, I recommend that my students take a quick peek at the recent Haischer opinion in which the Maryland Court of Appeals ruled in favor of the injured engineer, Mr. Haischer.

In Haischer, the Maryland Court of Appeals of examined when the collateral source rule applies in Maryland.

Q: So what did the Court hold?
A: The collateral Source Rule applies in Maryland.

Haischer's ruling presents very good news for Huggins and Huggins Law (and also for our client.) But, the opinion signals very bad news for the other side. Thus, Maryland’s Highest Court provided the "hook" on which we hang our client's argument.

Good news; our client's Quality of Life has certainly been altered.

Stay tuned, folks . . .

Once again, we offer you public THANKS, Chi, for all your dedicated research on the Collateral Source Rule in Maryland
.
By the way, congrats, Chi, on your recent success and swearing in to the New York and New Jersey bar exams. Stay focused.

Court rules in favor of Second Amendment gun right: (Associated Press)

2008-06-26T11:39:00.005-04:00

From the National Rifle Association:

WASHINGTON (AP) -- The Supreme Court ruled Thursday that Americans have a right to own guns for self-defense and hunting, the justices' first major pronouncement on gun rights in U.S. history.

The court's 5-4 ruling struck down the District of Columbia's 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision went further than even the Bush administration wanted, but probably leaves most firearms laws intact.

And that’s that.

Read the 157 page opinion and determine for yourself.

Second Amendment protects an individual right to possess a firearm

2008-06-26T10:39:00.003-04:00

From the web page of MCRGO:

BREAKING NEWS: D.C. vs. Heller - Supreme Court rules that the Second Amendment protects an individual right to possess a firearm.
2008/06/26
www.scotusblog.com

June 26, 2008

The Court has released the opinion in District of Columbia v. Heller (07-290), on whether the District’s firearms regulations – which bar the possession of handguns and require shotguns and rifles to be kept disassembled or under trigger lock – violate the Second Amendment. The ruling, which struck down the provisions in question, is affirmed.

Justice Scalia wrote the opinion. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg. Today's opinion by Justice Scalia is available HERE.

Quoting the syllabus: "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditional lawful purposes, such as self-defense within the home."

We have worked for this decision for at least seven years.

And it feels real good to be on the right side of the issue.

The Right to Bear Arms is an INDIVIDUAL right; not a collective right.

The opinion translates into LOTS of work for us to do.

Click here to go to the MCRGO.org page.

W must be sure that cities, and counties, and state comply.

Happy Birthday to Nadine.

Digitek Class action suit filed in New Jersey

2008-06-25T13:37:00.004-04:00

Digitek Recall Blamed on Shoddy Manufacturing, according to this June 4th, 2008 article on News Inferno:

A Digitek class action lawsuit filed on the heels of April’s Digitek recall raises serious questions about the way the defective pills were made. According to the Digitek class action lawsuit, a US plant that made some of the defective Digitek tablets was the subject of a Food & Drug Administration (FDA) warning letter in 2006.

The Digitek class action lawsuit, filed in US District Court in New Jersey, says that the FDA issued a warning letter to Actavis back in August 2006 for failing to provide periodic safety reports at its oral dose manufacturing plant in Little Falls, N.J. According to the complaint, some of the faulty Digitek came out of that plant. The Digitek lawsuit also claims that another FDA inspection in early 2006 revealed six potentially serious and unexpected adverse drug events dating back to 1999 for products that included generic Digitek, that weren’t reported to the agency.

The lawsuit was filed just weeks after Actavis Towtowa recalled Digitek tablets because some of the medication contained twice the active ingredient normally found in Digitek. According to the FDA, the Digitek defect could cause serious and even fatal reactions in users. The recall involved all lots of Bertek and UDL Laboratories Digitek (digoxin tablets, USP, all strengths) for oral use. Actavis Totowa, LLC is a United States manufacturing division of the international generic pharmaceutical company Actavis Group. Actavis manufactures the products for Mylan Laboratories, which are distributed by Mylan and UDL under the Bertek and UDL labels.

The FDA deemed the Digitek recall a Class I recall, meaning that the defective Digitek tablets could cause serious health problems or death. A double-strength Digitek tablet poses a serious risk of digitalis toxicity in those patients suffering from renal failure. According to the agency, there have been several reports of illnesses and injuries in patient taking Digitek. Actavis said it had 11 such reports. But because not all adverse reactions are reported to the FDA or manufacturers, the true number could be much higher.

The Digitek lawsuit names Actavis, Mylan and UDL as defendants. At least one of the plaintiffs in the Digitek class action lawsuit alleges she experienced “changed cardiac symptom episodes of nausea, and dizziness” from her Digitek consumption. Another plaintiff alleges he may have suffered serious personal injuries, including kidney damage, after taking the defective drug.

Click here to continue reading the article.

Could we be looking at the next Fen-Phen?

Bring it on!

http://www.newsinferno.com/archives/3199

http://www.fda.gov/cder/news/phen/fenphenqa2.htm

Consider the Source, Part Two

2008-06-24T07:59:00.002-04:00

Is the following "buzz" a real example of "egg on the face?"

This on-line story, published by Yahoo, validates my skepticism of dependence on on-line sources. And reminds me why I caution my law students to hit the books, in addition to depending on only on-line research.

Amazon Tribe:The Not-So-Lost Tribe

by Mike Krumboltz

June 23, 2008 06:09:40 PM

Even in an age when cynical sleuths can hyper-analyze stories for truth and accuracy, the occasional hoax still slips through the cracks. Such was the case with a so-called "lost Amazon tribe."

A few months ago, mainstream news outlets (including, ahem, Yahoo!) reported that a photographer had found a lost tribe of warriors near the Brazilian-Peruvian border. Photos of the tribe backed up his claim.

As it turns out, the story is only half true. The men in the photo are members of a tribe, but it certainly ain't "lost." In fact, as the photographer, José Carlos Meirelles, recently explained, authorities have known about this particular tribe since 1910. The photographer and the agency that released the pictures wanted to make it seem like they were members of a lost tribe in order to call attention to the dangers the logging industry may have on the group.

The photographer recently came clean, and news outlets, perhaps embarrassed at having been taken for a ride, have been slow to pick up the story. Now, the word is starting to spread and articles in the Buzz are picking up steam. Expect a lot more brutal truth in the coming days.

Once again, this Professor cautions you: Consider the Source.

Professor Huggins reminds everyone, self included: Consider the Source.

Road Rage and Aggressive Driving

2008-06-22T22:30:00.004-04:00

Find out [which cities are the] worst and best to drive

By CRAIG HOWIE, AOL AUTOS

Do you live in one of the nation's worst cities for road rage? If you live in a major metropolitan area on either coast, chances are you do. If you live in the Midwest or Northwest, odds are that you don't. In a nationwide study of driver habits, Miami ranks as the worst city for aggressive driving (for the second straight year) followed by New York, Boston, Los Angeles and Washington. But if road rage is a "cultural phenomenon" as one of our experts suggests, how best do we go about combating driver frustration across the nation?

So keep that finger to yourself.

http://autos.aol.com/article/safety/v2/_a/road-rage-aggressive-driving-states/20070806101009990001

Price of Gasoline dropped under $4.00 today.

2008-06-18T17:57:00.012-04:00

How wonderful to drive down the main drag, and joyfully pull into the very first gas station; emphasize the word joyfully.

Yesterday, we dreaded approaching the time to fill up; fortunately the readout on the Cadillac lets us know exactly how many gallons remain in the tank. Also fortunately, the Caddy gets great gas mileage.

What a delight to marvel how much the prices dropped in one day.

We noted a huge difference from the price last night.

Hmmmmmmmmm . . .

Check out the 2008 CTS. Actually, I like the 2007 CTS better. Blue Chip rules!

Congrats to our new lawyers!

2008-06-17T23:34:00.001-04:00

A legend is gone: Tim Russert died of a fatal heart attack while at work

2008-06-14T09:16:00.003-04:00

NBC's Tim Russert Dies at Age 58

The political and media world lost a legend on Friday after venerable newsman Tim Russert died at the age of 58.

According to NBC’s Tom Brokaw, Russert collapsed and died while at work at the NBC bureau in Washington, D.C. Russert had just returned from a trip to Italy with his wife and son. He suffered a fatal heart attack, The New York Times reported on its Web site.

Click here to read the rest of the story …

Friday, June 13, 2008

Superstitious? Perhaps.

More Digitek lawsuits expected to be filed next week

2008-06-12T23:26:00.003-04:00

Families Suing Mylan For Medication Mistake
Posted Thursday, June 12, 2008 ; 06:00 AM

More lawsuits are expected to be filed in the next week by a trio of West Virginia law firms against Mylan Pharmaceuticals Inc. and other pharmaceutical companies.

Story by Beth Gorczyca Ryan

More lawsuits are expected to be filed in the next week by a trio of West Virginia law firms against Mylan Pharmaceuticals Inc. and other pharmaceutical companies alleging medication the companies made and distributed did more harm than good.

So far, three lawsuits have been filed in West Virginia -- two in Kanawha County and one in Putnam County. But James C. Peterson, a lawyer with Hill, Peterson, Carper, Bee & Deitzler PLLC in Charleston, said he expects three or four more lawsuits to be filed within the week or two.

Click here to continue reading.

Digitek lawsuits filed in West Virginia

2008-06-06T11:27:00.005-04:00

Two new lawsuits allege that one patient died and another was injured after they consumed a heart drug distributed by Mylan Pharmaceuticals that contained twice the approved amount of the drug.

The lawsuits were filed last week in West Virginia for alleged injuries suffered by patients who took Digitek, also known as Digoxin.

The drug is used to treat various heart conditions, including atrial fibrillation, atrial flutter and heart failure. The drug is designed to help the heart beat and contract more efficiently.

But Digitek "has a narrow therapeutic index, and thus, has a limited margin between effectiveness and toxicity," the lawsuits state.

The damages to patients were caused, the lawsuits allege, because the pills they recently consumed contained "twice the approved level of active ingredient."

The United States Food and Drug Administration set that "approved level."

Click here to read the rest of the story.

Thanks, Matt, in my Monday class at Thomas M. Cooley Law School.

Digitek tablets recalled

2008-05-31T11:49:00.000-04:00

Actavis Totowa LLC notified healthcare professionals of a Class I nationwide recall of all strengths of Digitek, a drug used to treat heart failure and abnormal heart rhythms.

The products are distributed by Mylan Pharmaceuticals Inc., under a “Bertek” label and by UDL Laboratories, Inc. under a “UDL” label.

The product is being recalled due to the possibility that tablets with double the appropriate thickness may contain twice the approved level of active ingredient.

The existence of double strength tablets poses a risk of digitalis toxicity in patents with renal failure. Digitalis toxicity can cause nausea, vomiting, dizziness, low blood pressure, cardiac instability and bradycardia. Several reports of illnesses and injuries have been reported.

Patients should contact their healthcare professional with questions.

Click here to read the FDA Press Release

[April 25, 2008 - Press Release - Actavis Totowa LLC]

http://www.fda.gov/oc/po/firmrecalls/actavis04_08.html

Making Your Case: The Art of Persuading Judges

2008-05-13T16:49:00.004-04:00

This month’s issue of the ABA Journal includes an article that underlines the need to write in Plain English.

Making Your Case: The Art of Persuading Judges
May 2008 Issue , ABA Journal

In his 21 years on the U.S. Supreme Court, no one has seriously accused Justice Antonin Scalia of being unable to express himself. Cass R. Sunstein, the University of Chicago law professor, has likened his writings to those of Justices Robert H. Jackson and Oliver Wendell Holmes. University of Wisconsin law professor Ann Althouse says she “constantly dearly” wishes Scalia’s colleagues had his sense of wit and style.
From the bench he’s an acute—and sometimes withering—questioner. On the printed page, he’s a direct and engaging writer. And from the lectern he’s a smooth and self-assured orator—a self-professed fan of harsh truths skillfully articulated, even when they are not his own.
In his new book, Making Your Case: The Art of Persuading Judges, Scalia teamed with Bryan A. Garner, editor-in-chief of Black’s Law Dictionary. Excerpted here, the book reveals ways in which clear writing, clear speaking and—above all—clear thinking can help you make your case.

Click here to continue this fascinating article.

http://www.abajournal.com/magazine/making_your_case/print/

Prisoners as telemarketers? Inmates or Outsourcing?

2008-05-09T16:16:00.001-04:00

Should prisoners have access to private information belonging to members of the public?
Do you want your teenager to answer the telephone and a convicted felon is on the other end of the line?

Oregon's Snake River Correctional Institution holds a telemarketing call center in the prison.

Here is an excerpt from a USA TODAY article:

About a dozen states — Oregon, Arizona, California and Iowa, among others — have call centers in state and federal prisons, underscoring a push to employ inmates in telemarketing jobs that might otherwise go to low-wage countries such as India and the Philippines. Arizona prisoners make business calls, as do inmates in Oklahoma. A call center for the DMV is run out of an all-female prison in Oregon. Other companies are keeping manufacturing jobs in the USA. More than 150 inmates in a Virginia federal prison build car parts for Delco Remy International. Previously, some of those jobs were overseas.
* * *
The center opened last year after a yearlong push by the Oregon Department of Corrections to recruit businesses that would otherwise move offshore. The program reduces by 24% recidivism, the frequency in which released prisoners violate the law and wind up back in jail, and teaches prisoners to work together.

Yikes ...
Click here to continue reading.

Do Behavioral Ads Endanger Your Privacy?

2008-04-24T12:39:00.001-04:00

Do Behavioral Ads Endanger Your Privacy?

By David Bender
New York Law Journal
April 2, 2008

Ever wonder what happens to the data generated from all that Internet surfing and all those searches conducted through search engines such as Yahoo, Google and Ask.com? Is the data destroyed after logging off? Is it kept? For how long? Is it used and, if so, how and by whom?

An increasing number of Americans have recently become aware that much of this data is indeed being kept and used to target advertising to them in a more precise manner, based on their interests as evidenced in their surfing and search activities -- a practice known generally as behavioral advertising. But is this lawful? If so, is it appropriate?

http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1207065969592

How important is "Plain Language" anyway?

2008-04-23T15:32:00.002-04:00

How important is "Plain Language" anyway?

Well, the House recently passed the PLAIN LANGUAGE IN GOVERNMENT COMMUNICATIONS ACT OF 2008.

Its PURPOSE. The purpose of this Act is to improve the Federal Government's effectiveness and accountability to the public by promoting clear communication that the public can understand and use.

According to THOMAS, The Library of Congress, web site, here is a small sample of the House Report regarding this important piece of Legislation.

HOUSE OF REPRESENTATIVES

--PLAIN LANGUAGE IN GOVERNMENT COMMUNICATIONS ACT OF 2008

April 10, 2008- Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Mr. WAXMAN, from the Committee on Oversight and Government Reform, submitted the following

R E P O R T

[To accompany H.R. 3548]

[Including cost estimate of the Congressional Budget Office]

The Committee on Oversight and Government Reform, to whom was referred the bill (H.R. 3548) to enhance citizen access to Government information and services by establishing plain language as the standard style for Government documents issued to the public, and for other purposes, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.

CONTENTS Page

Purpose and Summary 3

Background and Need for Legislation 3

Legislative History 3

Section-by-Section 4

Explanation of Amendments 5

Committee Consideration 5

Rollcall Votes 5

Application of Law to the Legislative Branch 6

Statement of Oversight Findings and Recommendations of the Committee 6

Statement of General Performance Goals and Objectives 6

Constitutional Authority Statement 6

Federal Advisory Committee Act 6

Unfunded Mandate Statement 6

Earmark Identification 6

Committee Estimate 6

Budget Authority and Congressional Budget Office Cost Estimate 7

Changes in Existing Law Made by the Bill, as Reported 8

http://thomas.loc.gov/cgi-bin/cpquery/T?&report=hr580&dbname=110&

The four habits of successful writers

2008-03-25T10:25:00.001-04:00

Could You Be the Next John Grisham?

Part II: The 4 habits of successful writers

There is no list of habits that will turn you from a frog with writer's block into a prince with a book contract. But here are four qualities that all successful writers have.

1. You need to be yourself, and you need to believe in yourself.

You have something to say in a way that only you can say it. And this is the essence of writing that works: great ideas, stories, and themes expressed in a unique voice. Great writing is not just about pretty language and daring word choices, though these often help. It's not about punctuation, either (although good punctuation also doesn't hurt). I know one author who's published more books than I have fingers. She uses commas like a chicken goes after corn, poking them in places they don't belong. But she has smart ideas and outlines them carefully. And this is why she succeeds.

2. You must have discipline.

For three years, John Grisham got up at 5 AM every morning to write, then went to his day job at a law firm, where he worked 60 to 70 hours a week. Here's how his schedule might have looked: Write from 5 AM to 8 AM. Go to the office and work from 9 AM to 9 PM (or later). Repeat. This means he wasn't watching Must See TV or brooding at a café, thinking about what a great writer he could be if only he had the time and didn't have to go to work every day. Rather, he was writing every day, for years. This was a sacrifice. But I bet he wouldn't change a thing.

3. You have to like reading.

This goes without saying. Read books on writing, and read good books, period. Your writing will improve.

4. You must have patience and courage.

Not only might it take you three years (or longer) to write a book, but it also will take you years to make it through the system.

I used to work for a best-selling author who never set out to become famous and widely read. He wrote many things and shared them with people he knew. Eventually, one of his essays made it to the hands of a literary agent on the other side of the country. She asked him if he had anything else like it. He did, of course: a lifetime's worth. This body of work became several books.

On the surface, his story sounds like a fluke. And it is, sort of. But had he not been writing his whole life, he would have needed to work for years to produce what he did. If you don't have this kind of patience, this kind of confidence in the goodness of your work, then the writing life isn't for you.

Click for the whole article.

Here we go again : Drug manufacturers and Fraud

2008-03-04T18:20:00.003-05:00

Court Allows Suit Against Drug Maker

http://www.nytimes.com/2008/03/04/washington/04scotus.html?ref=health

WASHINGTON — A 4-to-4 vote on Monday left the Supreme Court unable to decide a pharmaceutical pre-emption case that was argued a week ago.

The tie vote, with Chief Justice John G. Roberts Jr. not participating, will permit a lawsuit to proceed against the Warner-Lambert Company, the maker of a diabetes drug, Rezulin. The plaintiffs are 27 diabetes patients from Michigan who suffered liver damage while taking the drug. Rezulin was approved by the Food and Drug Administration in 1997 and withdrawn from the market three years later at the agency’s request.

A tie vote at the Supreme Court automatically affirms the lower court’s judgment. In this case, the federal appeals court in New York had rejected the company’s argument that the reasoning of a seven-year-old Supreme Court precedent barred individual damage suits that are based on the claim that a drug manufacturer obtained F.D.A. approval through fraud. Affirmance by a tie vote resolves only the particular dispute, without setting a precedent for other cases.

* * *

This case, Warner-Lambert Co. v. Kent, presented a narrow slice of the broad pre-emption issue that the court will take up in its next term. In that new case, Wyeth v. Levine, the question is whether the Food and Drug Administration’s approval of a drug’s label precludes individual damage suits based on the claim that the label failed to include sufficient information or adequate warnings.

http://www.nytimes.com/2008/03/04/washington/04scotus.html?ref=health

Client files - what can you ethically discard?

2008-02-29T11:30:00.000-05:00

From paper to kilobytes—updated

By Peter H. Geraghty
Director, ETHICSearch

You are a new associate in a medium sized 50-year-old law firm that has accumulated thousands of client files, most of which are closed or dormant. The cost of storing these files has become prohibitive.

As the new lawyer in the firm whom everyone looks to as being presumptively up to date with current technology, you've been asked to formulate a firm policy about what items in the client files can be transferred to an electronic format, and once the transfer has been made, which items in the files can be discarded. As you begin to think through this process, you realize that even if you do make such a transfer, there will still be some items in individual client files that should not be discarded.

What legal ethics issues should you keep in mind as you formulate this new firm policy?

Read this ABA Journal article to find the answers

http://www.abanet.org/media/youraba/200802/article11.html

How do you reach a decision?

2008-02-24T11:13:00.002-05:00

Judges Flunk Story Problem Test, Showing Intuitive Decision-Making

Posted Feb 19, 2008, 09:20 am CST, ABAJournal
By Debra Cassens Weiss

Researchers who asked 295 Florida trial judges to solve three story problems have concluded their wrong answers help show judges rely primarily on intuition when making decisions.

Nearly a third of the judges failed to answer a single question correctly and a similar number got just one answer right. The judges who answered incorrectly tended to select the intuitively obvious, but inaccurate, responses. The results, although poor, were comparable to those of other well-educated adults.

The authors cited the test and other psychological studies of judicial decision-making in support of their conclusions. “Judges are predominantly intuitive decision makers, and intuitive judgments are often flawed,” says the article, called “Blinking on the Bench: How Judges Decide Cases.” The results of the study will be published in the Cornell Law Review, Legal Blog Watch reports.

The psychological studies show judges appear inclined to use intuition “when awarding damages, assessing liability based on statistical evidence, and predicting outcomes on appeal,” the article says. “They are also vulnerable to such distractions as absurd settlement demands, unrelated numeric caps, and vivid fact patterns.”

The article suggests that judges can overcome their intuitive tendencies if they are given more time to deliberate and they are encouraged to write opinions explaining their decisions. Training, peer review, and checklists could also be helpful.

The story problems are part of a so-called Cognitive Reflection Test designed to distinguish intuitive from deliberative processing. Here are the questions:

1. A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost? (The answer is 5 cents, not 10 cents as many people first conclude.)

2. If it takes five machines five minutes to make five widgets, how long would it take 100 machines to make 100 widgets? (The answer is five minutes, not 100 minutes.)

3. In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake? (The correct answer is 47 days, not 24 days.)

The study's authors are Chris Guthrie of Vanderbilt University Law School, Jeffrey Rachlinski of Cornell Law School and U.S. Magistrate Judge Andrew Wistrich of the Central District of California.

http://www.abajournal.com/weekly/judges_flunk_story_problem_test_showing_intuitive_decision_making

Creating a market for a pharmaceutical

2008-02-14T14:18:00.002-05:00

“Disease mongering” is a term coined by some drug-marketing critics to describe what they view as an effort by pharmaceutical companies to enlarge the market for a drug treatment by convincing people that they are suffering from something that can be medically treated.

The pharmaceutical companies can do this either by narrowing the definition of what’s healthy or by expanding the definition of disease—and then creating campaigns to raise awareness of the ostensibly under-diagnosed and under-treated problem.

By promoting a view of a particular condition as widespread, serious, and treatable, these campaigns help to expand markets for a new pharmaceutical product.

Read the article from ATLA

http://www.atla.org/publications/trial/0802/news01.aspx

The Dangers of Virtual Cocktail Parties

2008-01-01T10:28:00.000-05:00

WANT A MALPRACTICE SUIT WITH YOUR MARTINI?

Most attorneys are familiar with this cliched-party scenario: You are at an event and someone, upon hearing you're an attorney, proceeds to ask you what he should do in light of a certain legal situation. Do you answer? And if you do, how can you protect yourself from legal fallout, such as a claim of malpractice or a problem with conflict of interest?

The conundrum has now moved online, according to Steven A. Lewis, a principal of Lewis & Bacon in Sacramento, Calif., and a frequent speaker and author on legal ethics. In a February 2002 piece entitled "The Internet Even Affects Your Ethics" published in the California Bar Journal, he writes, "In the era of the Internet, the risks presented have moved from the real chat rooms of the cocktail party to the virtual chat rooms of the Internet. Thus, lawyers must exercise great caution in:

conversing with prospective clients in chat rooms;
making postings to newsgroups answering questions seeking legal advice; and
inviting and responding to inquiries made over law firm Web sites."

That advice is still sound today, he says, especially due to the proliferation of social networking sites. "If you give legal advice to anyone in that kind of setting, there might be, I think, a reasonable expectation by that person to rely upon that as legal advice," he says. "It's an unnecessary risk for a lawyer to give specific legal advice to a specific question without a disclaimer; there has to be an expectation that if you haven't disclaimed it at all and are giving erroneous advice to people relying on you, people could get hurt."

http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1198021188519

A Lawyer’s Guide To Electronic Discovery: Potentially Privileged Searches

2007-12-05T16:00:00.000-05:00

A Lawyer’s Guide To Electronic Discovery: Potentially Privileged Searches

Introduction

By Bobby Malhotra, Esq

Privilege review is usually one of the most critical and sensitive aspects of the document review process. Inadvertent production of privileged documents can result in waiver of privilege for the produced materials. If these protections are waived, any privileged documents disclosed may be deemed waived for all purposes, not only as it relates to the current matter but also as a basis for new civil filings. While the Federal Rules of Civil Procedure do provide some structure to resolve the dispute if a party inadvertently produces privileged material–and notifies the adversary–a much safer strategy is to make sure that privileged documents are not produced in the first place.

What is “Privilege” from a Legal Perspective?

Privilege is a legal concept that protects from disclosing confidential communications made between attorney and their client for the purpose of obtaining or providing legal advice or services to the client. Basically, legal advice as communicated from attorney to client is exempt from production. The privilege concept applies to both communications an individual makes to their attorney and communications that a corporate client makes with outside and in-house counsel. Similar and related to the attorney-client privilege is the work-product doctrine, which protects disclosure documents and tangible materials prepared by or under the supervision of an attorney, in anticipation of litigation. This allows clients and counsel to share facts and opinions in order to set case strategy. Because such documents are likely to be extremely sensitive, it is crucial to make sure it is not inadvertently disclosed to adversaries.

Continue reading the article:

http://encorelegal.com/lawyers_guide.html

Good advice this time of the year

2007-11-27T18:25:00.000-05:00

"Speak little, do much."

So says Ben Franklin

2007-11-25T10:31:00.001-05:00

"Using Technology In The Courtroom - 10 Questions to Ask Before You Pull Out the Laser Pointer" Scherffius, Ballard, Still & Ayres, LLP 404-873-1220 (Atlanta office)

This presentation will be devoted to showing you various courtroom technologies that are available to assist you in presenting a case to a jury (and not to simply telling you about them). But before you use any kind of technology in the Courtroom, it is important to first ask yourself the following questions:

1) Will the use of technology assist the jury in understanding the case?

Click this link to continue reading the article...
http://www.sbsalaw.com/CM/Articles/Using_Technology_in-the-Courtroom.asp

http://www.sbsalaw.com/CM/Articles/Using_Technology_in-the-Courtroom.asp

Happy Thanksgiving to all

2007-11-22T11:14:00.001-05:00

Enjoy this day of Thanks.

Malpractice Insurance for the New Lawyer

2007-10-31T17:54:00.000-04:00

Jay Foonberg candidly speaks to the (new) or seasoned lawyer, and beseeches all of us to accept two facts about malpractice insurance.

He writes:

Accept Two Basic Facts:

1. You are responsible for malpractice, even if you did someone “a favor,” and did not charge or collect a fee;

2. At some time during your career, you will be sued for malpractice.

Whether you want to call it “errors and omissions” or malpractice” or “professional negligence,” it is the insurance that protects you, your clients, and third parties when you get sued.

Foonberg wrote the juicy new lawyer’s “Bible,” How to Start & Build a Law Practice. His book is available in the Cooley Bookstore, or online at the ABA webstore.

Don't sue for lost pants

2007-10-31T17:40:00.001-04:00

Justice served, finally.

The Lost pants Judge lost his job. Now, isn't THAT a surprise.

Read the story in the Washington Post.

http://www.washingtonpost.com/wp-dyn/content/article/2007/10/30/AR2007103002058_pf.html

What a relief . . . the system actually works . . . Phew!

We can all let out our breath, finally.

HAPPY HALLOWE'EN

2007-10-31T09:29:00.001-04:00

Thanks to FreeFoto.com

Quote from Law Professors Blog

2007-10-31T09:14:00.000-04:00

"It's none of their business that you have to learn how to write. Let them think you were born that way. "

- Ernest Hemingway

http://lawprofessors.typepad.com/legalwriting/

Hat tip to Legal Writing Law Professors Blog

The Whistleblower’s Effort Brings Satisfaction

2007-10-25T09:53:00.000-04:00

This story brought a smile to my face. Smug.

Detroit Council OKs $8 Million Settlement to Whistleblowers

October 23, 2007
Detroit Free Press
By ZACHARY GORCHOW

The Detroit City Council this morning approved the payment of $8 million in settlement of a whistleblower lawsuit filed by two former Detroit police officers.

The council approved the payment to former Deputy Chief Gary Brown and former officer Harold Nelthrope. The settlement stems[from] a lawsuit the men won against the City of Detroit and Mayor Kwame Kilpatrick.

A Wayne County jury last month determined that Kilpatrick retaliated against the two former cops for alleging and investigating wrongdoing by members of the mayor’s inner circle.

It awarded a $6.5-million judgment, which the mayor vowed to appeal. Interest and legal costs brought the total to about $8.5 million, but under the settlement, Brown and Nelthrope will get $8 million.

Former bodyguard Walt Harris, whose lawsuit is pending, would receive $400,000.

http://www.freep.com/apps/pbcs.dll/article?AID=/20071023/NEWS01/71023028/0/NEWS01

Of course, it feels good to see the little guy get his just rewards.

My faith in the system remains solid.

The Best Advice

2007-10-17T09:37:00.000-04:00

Write your brief in a way that helps the Judge understand your client’s story.

A while back, I posted a blog entry to help my students set the stage for the Judge.

Today, I refer my students back to that posting.

http://hugginsandhugginslaw.blogspot.com/2007_01_01_archive.html

Perhaps my advice might "stick" this time.

Write your brief to make the Judge understand your client’s story

2007-10-16T23:24:00.000-04:00

A while back, I wrote an entry to help my students set the stage for the Judge.

Today, I refer my students back to that posting.

As you read the entry for today, ask yourself: how many times could I have improved my writing?

The answer might be surprising.

Students of “Privacy Concerns: This One’s for You

2007-10-16T11:02:00.000-04:00

The Dutch society screams: "Get ready to give up your privacy."

"Big Brother" restaurant opens to study diners
By Emma Thomasson
Mon Oct 15, 2007 10:54am EDT
From Reuters

WAGENINGEN, Netherlands (Reuters) - Does service with a scowl put you off at lunch? Will you eat more greens if you are surrounded by plants? Does romantic, pink lighting encourage you to linger over your fruit salad?

A new research center -- dubbed the "restaurant of the future" -- at the Dutch university ofWageningen hopes to help answer these questions and more by tracking diners with dozens of unobtrusive cameras and monitoring their eating habits.

"We want to find out what influences people: colors, taste, personnel. We try to focus on one stimulus, like light," said Rene Koster, head of the Center for Innovative Consumer Studies, as overhead bulbs switched through green, red, orange and blue.

This story brings a whole new twist to “Big Brother” is watching you.

http://www.reuters.com/article/newsOne/idUSL1023033620071015

Small Firms -- Even Solos -- Celebrate! Finally!

2007-10-13T09:50:00.000-04:00

Could this be the beginning of a new trend?
And could this new trend be one that might possibly bring the Solo Practitioner or the Small Firm onto an equal footing with BigLaw?

For the answer, and an interesting read, please read this article from the November 2007 Litigation News Online Issue Preview; published by the American Bar Association Section of Litigation.

Bigger Isn’t Always Better When It Comes to Outside Counsel

By Ruth E. Piller, Litigation News Associate Editor

Corporate legal clients once again seem to be developing an affinity for small law firms—notwithstanding the merger mania of recent years and the perception that large corporations want only to hire megafirms.
With increasing frequency, the chief legal officers of leading corporations are now retaining small law firms and even solo practitioners.

“I do believe that we are seeing an increase in inside counsel using smaller, boutique firms,” says Horace W. Jordan Jr., Lake Forest, IL, cochair of the Section of Litigation’s Corporate Counsel Committee. Jordan, who is general counsel for an equipment leasing company, believes that two dynamics are responsible for this change: “the billable hour and a feeling that the smaller firm might have more flexibility in both arranging billings and understanding the client and its business.”

My eyes are open, and of course I eagerly await the benefit to our small firm.

Too bad for folks who want to join Big Law ... but ... .

2007-10-05T11:11:00.000-04:00

A law degree isn't necessarily a license to print money these days, so says Amir Efrati in his Wall Street Journal article, which appeared on Page A1 in the September 24, 2007 edition.

Hard Case: Job Market Wanes for U.S. Lawyers;Growth of Legal Sector Lags Broader Economy; Law Schools Proliferate

For graduates of elite law schools, prospects have never been better. Big law firms this year boosted their starting salaries to as high as $160,000. But the majority of law-school graduates are suffering from a supply-and-demand imbalance that's suppressing pay and job growth. The result: Graduates who don't score at the top of their class are struggling to find well-paying jobs to make payments on law-school debts that can exceed $100,000. Some are taking temporary contract work, reviewing documents for as little as $20 an hour, without benefits. And many are blaming their law schools for failing to warn them about the dark side of the job market.

Click here to read the article.

Too bad for folks who want to join Big Law.

Good News for ambitious solo-self-starters.

I disagree. A new law degree isn't necessarily a license to print money these days.

But if you are fortunate to have a few spectacle of dust on the degree . . . it could be a very different story.

http://online.wsj.com/article_email/article_print/SB119040786780835602-lMyQjAxMDE3OTIwODQyMDg3Wj.html

Hat tip and thank you to Gary Roehm, JD, who emailed this story to me.

Students of Property Law: What do you think?

2007-10-03T10:08:00.000-04:00

Is Woodstock for Sale?

Yes, according to this article published Aug 8, 2007, in the Washington Times:

Woodstock's swan song

August 8, 2007

By Jennifer Harper

For sale: Rustic property with mountain view, $8 million.

Old hippies, take note. Another Woodstock icon is about to drift off into history — or commercial development, anyway. Max Yasgur's farm is up for sale in Bethel, N.Y., less than two miles from the original site of the 1969 music festival, which has since mutated from legend to lucrative brand name.

Click here to read the entire article.

http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20070808/NATION/108080087/1001

Some things just break my heart ….

Are Two Heads Better Than One?

2007-09-28T10:23:00.000-04:00

See this tiny two-headed turtle?

He makes me think of our little friend, Gus… And so I wonder how he is doing as he heads back to gangland, Los Angeles.

(Tee hee -- get it? ... as he "heads" back to Los Angeles!)

Thanks to Yahoo News, and the story from the Associated Press.

http://news.yahoo.com/s/ap/20070928/ap_on_fe_st/two_headed_turtle

And I hope that Roxane appreciates the story.

Stolen Body Parts? Transplanted?

2007-09-26T14:11:00.000-04:00

Just when I thought I could not be shocked anymore, this story pops up and shatters my brain. It just makes me shake my head in wonder and awe. Professor Jason was right on the money with his "contract issue" research on Organ Donation.

North Texan files suit over transplanted tissue

Consumers Are Unsettled by Reports of Stolen Transplant Tissue

by Jan Jarvis, Staff Writer, Ft. Worth Star Telegram 09/25/2007

When Jim Livingston received a call from his doctor to tell him that a bone implanted in his neck to relieve disk pain had been recalled, Livingston almost thought it was a joke. However, investigations have increasingly revealed that Livingston and others like him are carrying bones and tissue taken illegally from cadavers. Livingston has filed a lawsuit against parties that supplied the allegedly stolen bone.

* * *

"How can you sell parts out of a body, just like parts from a stolen car?" he said.

New York authorities investigating the case believe Biomedical Tissue Services owner Michael Mastromarino started by striking deals with funeral directors to remove body parts from corpses without notifying their families or screening for disease. Then, in a secret room in a Brooklyn funeral home, he removed bones, tendons and heart valves, according to a spokesman for the Kings County district attorney's office in New York. The charges include a Class B felony punishable by up to 25 years in prison.

Mastromarino is accused of doctoring death certificates and forging consent forms, according to the Kings County district attorney's office. Then, investigators believe, he replaced the bones with PVC pipe and sewed the incision so it would not be noticed at the funeral.

From there, the body parts were shipped to processing firms across the country. Once sterilized, they were implanted in patients from early 2004 to September 2005.

Click here to read the entire article.

Again, I am bowled over. What next?

Do you use quote marks in the wrong place?

2007-09-25T08:29:00.000-04:00

Blogger `exposes' Annoying Quote Abuse

By JOCELYN NOVECK, AP National Writer

Friday, September 21, 2007

(09-21) 15:49 PDT NEW YORK, (AP) –

Ms. Noveck writes:

Isn't it "funny" how something can "really annoy" you for ages and then you discover via "the Internet" that the same thing "really annoys" thousands of "other people," too? The blight that Bethany Keeley exposes on her "Blog" of "Unnecessary" Quotation Marks ( ) is of a benign sort, of course, nothing like global warming or endangered wildlife.

But it bothers people mightily just the same, as this 24-year-old grad student and language-lover has discovered from the hundreds, occasionally thousands of visitors she gets daily. And nary a day goes by when she doesn't receive a bunch of e-mails with photographic evidence of quote abuse, misuse or overuse.

Click here to continue reading this story.**

Click here to go straight to the blogger’s blog.

** Apologies for sending you to the SFGATE link.

This is one blog entry that I hope my students will note well.

http://quotation-marks.blogspot.com/

http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2007/09/21/entertainment/e114200D30.DTL

Account for Every Penny ... Or Else ...

2007-09-14T11:08:00.001-04:00

When the lawyer prepares a settlement for the client, a good practice is to account for every single penny in the statement.

If the settlement documents do NOT show where the money went, then the lawyer might be subject to scrutiny.

Or worse. Jail.

http://www.abajournal.com/weekly/shackled_fen_phen_lawyers_seek_release_judge_says_no

This New Yorker will Never Forget the loss of a friend

2007-09-11T10:33:00.000-04:00

My blog entry will be brief today.

Our family lost a good friend that day.

He was a cop. He ran back in to help but never came out.

So sorry, Joey... we'll pray for you and the family ...

And our friends and family from the Big Apple remember ... each in their own way ...

http://www.amny.com/news/local/am-911sixthanniversary-gallery,0,7674010.photogallery

What about those grand legal fees?

2007-08-27T18:27:00.000-04:00

Is it time for the "billable hour" legal fee to actually disappear?
Scott Turrow says yes.

In his article, "The Billable Hour Must Die," in the August 2007 edition of the ABA Journal, Turow postulates that the billable hour "[r]ewards inefficiency. It makes clients suspicious. And it may be unethical."

The billable hour certainly does not apply in solo practice. At least it does not apply to solo practitioners as much as the billable hour applies in BigLaw. (My opinion, here.)

On the other hand, this author prefers the recent article by Nathanial Koppel that appeared on the front page of the Marketplace section of the Wall Street Journal :
"Lawyers Gear Up Grand New Fees: Hourly Rates Increasingly Hit $1,000, Breaching a Level Once Seen as Taboo."

Interesting psychology, as claimed, in keeping the fee under four digits. An anonymous partner in a New York firm tells why: "We have viewed $1,000 an hour as a possible vomit point for clients."

Pretty graphic reasoning, wouldn't you agree?
How does that stack up with the pro-bono hours that we report each year?
Pity the client who sees that billing statement.
And pity the poor fool who has to collect! Ha, ha, ha.

Bring your pen to the bar exam -- leave the laptop at home

2007-08-18T15:14:00.001-04:00

Don't argue with your Advanced Writing Professor when she INSISTS that her students write the final exam using a blue ink pen and INSISTS that the students write neatly on every other line in the blue book.

And don't argue to her that technology has changed, so we should take our bar exam on a laptop. Your arguments will fall on deaf ears.

When your Professor stomps her foot down, remember she has your best interest at heart. At least this AW Professor has her students' best interests at heart.

Some students balked at taking her final by writing -- legibly, please -- in the old-fashioned bluebook.

"That's so nineties," she heard you argue. But she kept that foot planted firmly on the floor.

And now we read that some laptop New York exams were "lost" when the laptop software malfunctioned. What a scare. The story sent chills down my spine, while creating a smug smile across my face.

No one wants to face the prospect of sitting for that exam TWICE, not knowing if the FIRST score was a passing or failing grade.

The good news: not everything was lost.

Is part-time, in-house, legal-counsel right for you?

2007-08-01T08:56:00.000-04:00

If you think you are paying too much for legal services – or your counsel is not close enough to the operations of your business to give you proactive and timely service – a part-time in-house counsel solution may be appropriate for you.

By avoiding risk and providing stability and experienced, professional guidance, an on-site general counsel might profoundly enhance your business.

So writes Attorney Gerald D. Bloch, in his LawCrossing feature article.

Legal Outsourcing:
A Nontraditional Approach for Fast-Growing and Midsized Companies
By Gerald D. Bloch, Esq.

Click here to read the entire article.

This might be some good advice for my students who are contemplating flying "solo" right out of law school. Hmmmmm.

Yes, it is in the rear view mirror – the bar exam is over – until the next time.

2007-07-29T08:12:00.000-04:00

After three – maybe four – years of law school, my students were asked to put all their eggs in one basket, to place all their chips on one roll, and a bunch of other clichés. The most arduous two days of a law student's life: the bar exam.

As I tell my students, “You will never, in your entire legal career, know as much law as you do today.”

One of my favorite students sweated through the bar exam Tuesday and Wednesday. We took him out for a top-shelf, hard-earned, well-deserved scotch.

As we listened to him recount the questions and the answers that he remembered, we were amazed at his depth of knowledge and understanding of the topics.

Yes, he felt confident, and he was prepared. We smiled proudly, beaming at him, and happily patted ourselves on the back for nurturing and mentoring him through his difficult days.

Soon, he will be a lawyer and a fine colleague.

Do you fear that phone interview?

2007-07-21T08:54:00.000-04:00

As so many law students are preparing to take the bar exam this week, I thought that this article from the recent ABA eJournal would give them a heads-up regarding phone interviews.

The tips and suggestions offered use just plain common sense to any job seeker, not just to veteran attorneys looking to make the jump from “Big Law” to “Going Solo.”

To the recruiter, phone interviews are just one more way to streamline the process of finding and hiring the right person for the job.

FROM THE JULY 2007 ABA JOURNAL:
Dialing Up the Next Job:
The future may be calling, so don't get hung up on phone interviews
By Hope Viner Samborn

Among other nifty tips and suggestions, author Hope Viner Samborn recommends that job seekers:

PREPARE AS IF YOU’LL BE THERE

She also recommends that job applicants take notes—normally inappropriate in person but extremely helpful in a telephone interview. Conducting the interview in a quiet space is also key. “You’ll kick yourself until Tuesday if the baby sitter knocks on the door or the dog wanted to go out,” … “Turn off the radio and the TV,” … If you have a noisy dog, don’t do it at home. Do it where you can concentrate.”… Nor should a job applicant jump to do a phone interview whenever a prospective employer calls. “You need to be prepared. ” … “You want to show that you are flattered, but it doesn’t mean you have to do it right then just because that is when they called.”…“You can’t be on a StairMaster talking to a senior partner and make the impression you want to make,” . . .Job seekers should prepare for a telephone interview the same way that they would for any other interview. Study the employer carefully and review company or law firm Web sites.

Click here to read the entire article.

http://www.abanet.org/journal/ereport/jy20ca.html

The tips and suggestions work in other situations where the phone presence is critical.

For sure, I have learned so much.

Are text messages admissible into evidence? YES.

2007-07-06T02:14:00.000-04:00

The Maryland Court of Special Appeals held that text messages are admissible if there is enough circumstantial evidence to establish that the Defendant actually sent them to the victim's phone.

See the reported Opinion:
Dickens v. State, CSA No. 1739, Sept. Term 2005. Reported. Opinion by Salmon, J. Filed July 2, 2007.

Those little tiny flare-ups, temper tantrums, nasty remarks, often sent in haste, just might come back to haunt you. Use caution, please, or you might have to eat your words.

Happy Birthday to Our Wonderful Nation

2007-07-05T03:24:00.000-04:00

Our Nation celebrated its Birthday on Independence Day. We stood on Constitution Avenue and watched the Parade, waving at the folks who marched.

Living in the Nation’s Capitol is a privilege so dear to this writer’s heart. It is a true honor to be living here in the seat of Government and Power.

Click here to read all about Independence Day celebrations in the District of Columbia, the Federal City, and to see some great photos.

Bar Preparation:Which Prep Course is Right? Or Wrong?

2007-07-02T07:08:00.000-04:00

It's July again. That time of the year. As the time for the Bar Exam looooooooooms in the near future, my students often ask me for advice on WHICH Par Prep package is the right one?

Without hesitation, I do not recommend any one prep course over the other. I tell them which prep course worked for me.

When pressed further, my standard answer is, "Whichever works best for you."
And that is good, solid, advice.

Different students use different methods to succeed in law school -- creating flash cards, listening to tapes or CDs, joining a study group, or reciting aloud -- the same method works for Bar Preparation.

One other bit of advice? Choose your prep course wisely.

Bar Review Prep Company Must Pay $12 Million for Infringement

By DEBORAH NATHAN, ESQ., Andrews Publications Staff Writer

A popular bar review study course that copies questions verbatim from the Multistate Bar Examination:

a) is liable for copyright infringement,
b) is subject to an injunction,
c) must pay the plaintiff's attorneys fees or
d) all of the above.

The answer is d), according to a federal judge who assessed damages of $12 million against Multistate Legal Studies Inc.

The company must also pay the legal fees and costs incurred by the National Conference of Bar Examiners and is enjoined from continuing to infringe NCBE's copyrights.

Thanks to Findlaw. Click here to read the entire article. It's an eye-popper.
http://news.findlaw.com/andrews/bt/int/20060907/20060907_barreview.html

Thanks to Cornell Law: Click here to read the opinion.
http://www.law.cornell.edu/copyright/cases/692_F2d_478.htm

And click here for the story in the National Conference of Bar Examiner's Web Page:
http://www.ncbex.org/the-bar-examiner/article-archive/

Eyes open. Caution. That's all.

Teacher or Lawyer? How about doing both?

2007-07-01T09:09:00.000-04:00

In light of the recent terrorist attacks in the United Kingdom, the prospect of flying back to Michigan every week in the fall to teach looms unpleasant for this Law Professor.

Is it possible to combine the love of teaching with the love for the law? Yes, for Danielle Colyer.
The current ABA Journal eReport details the story of a "burnt-out" teacher who started her own solo practice. And she is quite successful, too.

Danielle Colyer went to law school, she says, because she burned out trying to teach uninterested students. Ms. Colyer teaches at Jones College Prep, a magnet high school in Chicago’s South Loop neighborhood. She is also the single mom of a grade schooler and runs a busy real estate law practice from her home office.

Her story intrigues me.

FROM THE JULY ABA JOURNAL
Her Homework: Law Practice
After a busy day in the classroom, this teacher gets her solo practice going

By Margaret Graham Tebo

Thank you for the inspiration, Ms. Coyler.
Read the article in the July Edition of the ABA Journal eReport.

http://www.abanet.org/journal/ereport/jn29solo.html

Strong women ccontinue to inspire.

Can't imagine what this family is going through

2007-06-23T07:13:00.000-04:00

Under Ohio law, the bodies of [individuals] who die in motor vehicle accidents must undergo an autopsy—the same as those who die violently or suspiciously or unattended, or who simply happen to be younger than age 2.

* * *

[One Couple’s deceased son’s] brain had been removed for examination [during the required autopsy], and at the time he was buried—a few days after the accident—it was still in Cincinnati, immersed in a fixing solution of formaldehyde and salt at the Hamilton County coroner’s office. The solution causes the brain to solidify so that it can be sectioned and analyzed, a routine process that takes 10 days to two weeks.

This article from the ABA Journal opened my eyes. I can't stop thinking about the pain this family must be feeling.

Read the article and shudder. It will run chills up your spine.

The Body in Question:

Coroners eye Ohio suit demanding they tell families about removal of body parts

By Mark Hansen

FROM THE JULY ABA JOURNAL

Passengers in the car are now covered when Police Stop and Search the Vehicle

2007-06-21T09:53:00.001-04:00

When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well and so may challenge the constitutionality of the stop.

Justice Souter wrote the majority opinion; this is what the United States Supreme Court held:

Supreme Court Holding: When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the stop's constitutionality.

Justice Souter delivered the opinion of the United States Supreme Court:

Click here to read the entire opinion.

Celebrate! This is the One Hundredth Post

2007-06-14T10:29:00.000-04:00

So it's only fitting that the topic f the 100th post should circle back to the ethical problem with the pants judge. The sixty-four million dollar pants judge has piqued the curiosity of the legal community in a way that I hope never happens to anyone in my circle.

During his testimony yesterday, the crowded courtroom laughed at his outlandish comments on the stand. We can only hope that the end of his trial will bring a peaceful end to this legal nightmare.

That pants lawyer makes all lawyers look terrible

As if the public does not hold lawyers in contempt already, this pants judge adds fuel to the fire. Personally, I think his antics belong on a psychiatrist’s couch-- not in a courtroom. In my opinion, he is abusing the court system for his own amusement. and potential financial gain. We can only hope that the system slaps him with sanctions, or worse: disbarment. After all, lawyers have been disbarred for much less than filing a frivolous lawsuit.

Click here to read the article in the Washington Times.

http://washingtontimes.com/metro/20070613-113032-6302r.htm

FDCPA is the debtor's friend

2007-06-13T07:55:00.000-04:00

From Law.com:

Debt-collection lawyers are increasingly being hauled into court as defendants in Fair Debt Collection Practices Act lawsuits by debt-burdened consumers who use litigation to fend off creditors.

Lawyers say the statute's vague and broad language opens the door to cases against law firms, and a recent federal court decision that denied litigation immunity to a debt-collection law firm creates even more risk for debt-collection lawyers.

Other factors behind the trend include mistakes in court filings made by debt buyers -- or their lawyers -- who purchase debt from creditors but frequently lack enough information to avoid making false statements in pleadings.

Click here to read the rest of the article.

Statute of Limitations Law for debt collections in Maryland

2007-06-11T08:01:00.000-04:00

In Maryland, the statute of limitations on debt collection runs for THREE years from the date the debt accrues, unless:

FOUR YEARS: Under the UCC, Breach of Contract under any sale of goods and services: FOUR years after the cause of action, even if the aggrieved party is unaqare of the breach.
TWELEVE YEARS: Promissory notes or instruments under seal, bonds, judgments, recongizance, contracts under seal, or other specialties.
TWELVE YEARS: Financinfg statement, unless a continuation payment is filed by a secured party SIX MONTHS prior to end of TWELVE YEAR period. Maryland Commercial Law articel Sec. 2-725; Courts and Judicial Proceedings article Sec. 5-101-02; 9-403.

This is not meant to be legal advice.
If you need legal advice, hire a lawyer.

DON’T alter discovery documents

2007-06-07T08:17:00.000-04:00

Do not lie during discovery; you’ll get caught.

This article outlines how a lawyer altered discovery documents.

What in the world was he thinking? DId he think he would get a way with it?

Sends chills up my spine.

Read this story. It contains a lesson in Ethics for the rest of us.

Firm's Mea Culpa Adds Twist to Class Action Against Best Buy

Matthew Hirsch, The Recorder
June 4, 2007

A consumer class action against Best Buy has taken an odd turn, as its outside counsel asked to withdraw from the case because one of the firm's lawyers had altered documents given to the plaintiffs.

In a May 24 motion received by a San Francisco Bay Area plaintiffs lawyer involved in the case, Minnesota-based Robins, Kaplan, Miller & Cerisi says partner Timothy Block had been placed on an indefinite medical leave. The day after he stopped working, he informed the firm "that he had redacted and altered documents that he later produced to plaintiffs in this matter."

The motion adds that the defense firm had been informed by Block's attorney that he had self-reported his actions to the Minnesota Board of Professional Responsibility.

Thanks to my friends at Solosez for tipping me off to this BIZZARE story.

First ask: do you really want this client?

2007-06-06T08:46:00.001-04:00

In the past, we have discussed some of the clients whom we should avoid - and some we wish that we had avoided.

Too late comes the wisdom. But never too late to learn.

A few "warning" signs that this client is better off in someone else's office:

this client has had multiple lawyers previously;
this client has been sued by the former lawyer;
this client does not respond to your communications;
this client leaves voice mails before nine a.m.; or
this client does not pay your attorney fees on time.

Any one of the above should signal "warning bells" in your head. If a client signals more thatn one -- RUN -- don't walk -- away.

Lesson learned, the hard way. But learned, nevertheless.

Vioxx? ALJ sheds some light on relevant legislation

2007-06-03T07:23:00.000-04:00

http://www.justice.org/pressroom/FACTS/products/vioxximmunity.aspx

Immunity for Vioxx Makers and Guidant Execs?

The Dirty Little Secret About the U.S. House Medical Malpractice Bill

Hidden in the bill that is being falsely advertised as malpractice insurance relief for doctors are sweet product liability protections for the drug industry: Sweeping immunities that will make it impossible for people injured or killed by unsafe drugs and products—like Vioxx and Guidant's heart device—to hold manufacturers accountable.

Specifically, the Bill Protects Drug and Medical Device Makers By:

Capping damages for any injury, or even death, at $250,000

* No matter how serious the injury it causes, and no matter how negligent its misconduct, companies like Merck and Guidant will never have to pay more than $250,000 in compensation for noneconomic loss to patients and families who are injured or killed by defective drugs. Noneconomic damages are the only compensation for the injury itself, as opposed to reimbursement of out of pocket expenses.

* Non-economic damages compensate people for devastating injury or loss, such as having to live the rest of one's life in a wheelchair, or for the loss of fertility, or for excruciating and chronic pain.

* For people with low incomes, like stay-at-home moms, children, and seniors, noneconomic damages are often the only way to be fairly compensated for devastating injury.

Under H.R. 5, drug companies will keep their profits while injured people are denied justice.

Shielding pharmaceuticals from punitive damages

* Punitive damages are intended to punish companies when they put Americans at risk by marketing a product they know to be unsafe.

* This bill ensures that except in rare instances, drug companies will never be subject to punitive damages because the bill requires an injured person to prove that a defendant intended to harm that particular person, an impossible standard to prove against a drug company that sells to millions of consumers.

* It also specifically prohibits punitive damages for FDA-approved products. Amazingly, it doesn't stop there. It also gives immunity to drug makers for many drugs and devices that are not FDA-approved!

* Under H.R. 5, the only way to recover punitive damages against a drug company is to prove that it knowingly lied to the F.D.A. and even then, a plaintiff would also have to meet a heightened standard of proof. Even in the very rare case in which a patient meets this huge burden, the bill still caps punitive damages at $250,000 or two times the amount of economic damages- no matter how egregious the misconduct.

H.R. 5 removes all incentives for safety, eliminates punishment for misconduct and leaves the public's welfare in the hands of the drug industry.

What This Means for Consumers:

* Without the threat of full liability—especially liability for punitive damages—there are no financial disincentives for keeping profitable but dangerous, even deadly drugs and medical devices off the market.

* H.R. 5 forces consumers to accept a Washington-knows-best, one-size-fits-all limit on the compensation a jury would be allowed to provide for an injury caused by a defective drug or device.

July 21, 2005

Do people really say what they think?

2007-05-31T09:07:00.000-04:00

Or do they often say what will make them look good to the person asking the question.

Something to think about when interviewing a client.

2007-05-30T13:10:00.000-04:00

This is an amazing story.

The heart is a wonderful organ. And this article tells a wonderful story about an artificial heart implanted in a sixteen-month old baby girl, waiting for a transplant.

A Triumph Of The Heart

By AARON SHAROCKMAN

c. 2007 St. Petersburg Times ;Distributed by The New York Times Syndicate

Alastair Thomas, 23, kissed his daughter, sixteen-month-old Alyssa Thomas, during a press conference at All Children's Hospital in Florida, Monday, May 21, 2007.

A mechanical device called a “Berlin Heart” was used to keep the infant alive long enough to get a heart transplant.

When Alyssa Thomas' tiny heart failed three months ago, a piece of German machinery kicked in. Called a Berlin Heart, the device kept Alyssa alive for 75 days until she received a new donor heart.

Click here to read the entire article.

Medical science makes geat strides.

A Blank?

2007-05-29T09:53:00.000-04:00

Yes, this day's blog entry is a blank.

So much out there, but nothing to write about.
Typical after the long weekend.

Oh well ...

Lawsuit filed: Discrimination Against People with Disabilities?

2007-05-25T08:34:00.000-04:00

Hotels.com faces lawsuit over accessibility; Plaintiffs claim that Hotels.com will not guaratee that wheelchairs can get into hotel rooms.

By Henry K. Lee, San Francisco Chronicle Staff Writer

Wednesday, May 23, 2007

On Tuesday, two people accused online travel agency Hotels.com in a lawsuit of discriminating against people who use a wheelchair.

The plaintiffs claim discrimination against disabled people by refusing to guarantee travel reservations for hotel rooms that are wheelchair accessible.

In a class-action lawsuit filed in Alameda County Superior Court, Judith Smith of Oakland and Bonnie Lewkowicz of Berkeley, both of whom use wheelchairs and helped found Axis Dance Company in Oakland, said Hotels.com treats accessibility as an optional "amenity," such as a king-size bed or a room with a view.

Despite making reservations online and contacting Hotels.com's customer-care representatives, the women found that wheelchair-accessible rooms aren't guaranteed, the lawsuit says. Smith and Lewkowicz use wheelchairs and tour the state and country as part of a troupe of dancers with and without disabilities.

"Thus, if an individual who depends on a wheelchair or other assistive device makes a reservation through Hotels.com, she runs a real risk that -- despite having prepaid for the room and made the reservation well in advance -- she will literally not be able to enter or use the room once she arrives at the hotel," according to the suit.

The suit seeks class-action certification and an injunction requiring Hotels.com to modify its policies and practices so that it will guarantee reservations for accessible hotel rooms.

In a statement Tuesday, Hotels.com, a subsidiary of Expedia.com of Bellevue, Wash., said, "We are aware that a lawsuit has been filed. As of this time, we have not been served or reviewed a complaint and cannot provide comment."

The suit could have nationwide implications for the online consumer travel industry, which generated $79 billion last year, said Sid Wolinsky, an attorney with Disability Rights Advocates in Berkeley, which filed the complaint with a private firm and Public Justice of Oakland.

"If people with disabilities can't use the Internet, they miss out on every possible economic opportunity," said Wolinsky, who noted that no damages are sought in the suit. "This should be a no-brainer for Hotels.com because there's a huge market of people with disabilities who want to travel just like everybody else."

The complaint alleges violation of state laws protecting the disabled and the Unruh Civil Rights Act, which prohibits businesses from discriminating against their customers on a variety of grounds.

Click here to read the article.

Huggins and Huggins Law, LLC

Be nice on the airplane . . . or lose your license.

Bloggers: Beware

Forgive Student Loans, reports the American Bar Journal

Student Loan Forgiveness? Yes, and stimulate the economy.

Don't Die Quietly: Baltimore medics mistakenly declare man dead

Tips on How to Avoid an Adoption Scam

Thank God for Evolution.

Wheels across America - Folks are really NICE.

I like Ike.

Nope. I won't fly unless Gary is at the yoke.

Bronx girl makes good: Appeals judge is first Latina and fourth woman to be nominated to US Supreme Court

Waffle House: Too hard to get a job? Or too difficult to get good help?

Which is the REAL STORY??

In Maryland, the Discovery Rule Applies to Breach of Contract Cases

Top 10 DUI Mistakes

Law Dean Says Schools ‘Exploiting’ Students Who Don’t Succeed

The sh-t is flying in Florida

Read 25 Things Lawyers Need to Know in Representing Personal Injury Clients in Maryland

Magazine Lists 50 Law Schools With Best Financial Aid Ratios [And Cooley is Number One!]

Don’t Feed the Inmates: Arrested Lawyer Learns Lesson the Hard Way

Be rational in your arguments

Encoded ammunition database -- coming soon to your state

The Top 10 Killer Deposition Questions

Get Started in the Shooting Sports

Law Prof Drops Defamation Suit against Students over Racism Claims

Fair Debt Collection Practices Act (FDCPA) text avalable

If you ride the bus, then you may lose your head.

Last Updated: Thursday, July 31, 2008 | 6:23 PM ET http://www.cbc.ca/canada/story/2008/07/31/greyhound-transcanada.html

CBC News

Passenger decapitated on a bus in Canada, witnesses say.

Last Updated: Thursday, July 31, 2008 | 6:23 PM ET Comments1942Recommend3269

CBC News

Shriners of North America helping kids

When will the Red Cedar River reach the flood stage?

What is an IOLTA?

Is this a "textbook property" easement issue?

Great Lakes Outdoors Foundation Established.

NY BAR EXAM takers for July, 2008: Warning !!

After you check it once, just check it twice, please.

Happy Birthday America - The Star Spangled Banner

The straight skinny on the Second Amendment decision

The Collateral Source Rule applies in Maryland

Court rules in favor of Second Amendment gun right: (Associated Press)

Second Amendment protects an individual right to possess a firearm

Digitek Class action suit filed in New Jersey

Consider the Source, Part Two

Road Rage and Aggressive Driving

Price of Gasoline dropped under $4.00 today.

Congrats to our new lawyers!

A legend is gone: Tim Russert died of a fatal heart attack while at work

More Digitek lawsuits expected to be filed next week

Digitek lawsuits filed in West Virginia

Digitek tablets recalled

Making Your Case: The Art of Persuading Judges

Prisoners as telemarketers? Inmates or Outsourcing?

Do Behavioral Ads Endanger Your Privacy?

How important is "Plain Language" anyway?

The four habits of successful writers

Here we go again : Drug manufacturers and Fraud

Court Allows Suit Against Drug Maker

Client files - what can you ethically discard?

From paper to kilobytes—updated

How do you reach a decision?

Creating a market for a pharmaceutical

http://www.atla.org/publications/trial/0802/news01.aspx

The Dangers of Virtual Cocktail Parties

A Lawyer’s Guide To Electronic Discovery: Potentially Privileged Searches

A Lawyer’s Guide To Electronic Discovery: Potentially Privileged Searches

Introduction

By Bobby Malhotra, Esq

What is “Privilege” from a Legal Perspective?

Good advice this time of the year

Happy Thanksgiving to all

Malpractice Insurance for the New Lawyer

Don't sue for lost pants

HAPPY HALLOWE'EN

Quote from Law Professors Blog

The Whistleblower’s Effort Brings Satisfaction

The Best Advice

Last Updated: Thursday, July 31, 2008 | 6:23 PM ET Comments1942 Recommend3269