Judge's Order: Rock, Paper, Scissors - No Joke

Category: Miscellaneous Musings

Sometimes it can be hard to love a lawyer - we have all heard the jokes (my favorite one dealing with a shark and "professional courtesy") - but the below real order issued from a judge takes the cake. Apparently, two lawyers were being as adversarial as possible, and the case was getting no-where. So the judge (obviously a very practical soul) ordered a game of rock, paper, scissors between opposing counsel to settle the matter. From

Robert Ambrogi's LawSites: Judge's Order: Rock, Paper, Scissors:

Following is the text of the order:

AVISTA MANAGEMENT, INC., d/b/a Avista Plex, Inc.,

Plaintiff,

-vs-

WAUSAU UNDERWRITERS INSURANCE COMPANY,

Defendant.

______________________________________

ORDER

This matter comes before the Court on Plaintiff's Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion – the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is

ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.

DONE and ORDERED in Chambers, Orlando, Florida on June 6, 2006.

A Shout Out to Fellow Attorney Bloggers

Category: Miscellaneous Musings

I was recently reading this post on More Ghostwriting and Websites at Death and Taxes - The Blog and it got me to thinking about why I blog and all my fellow bloggers. I agree with Joel Schoenmeyer's comment that "if you are using a website to market your practice, then you are at least in some way trying to convince potential clients of your legal abilities. Posting articles you have written is one way to do this. Posting articles someone else has written doesn't accomplish much".

The value to me in blogging is not only being able to educate the public and potential clients about subjects near and dear to my heart (what lawyer doesn't like getting up on a soapbox), but in being part of a community of attorneys who focus in my practice areas and who give their time to think about the law and their clients problems in their blog postings.

In light of this I would like to give a shout out to some of my fellow attorney bloggers (many of whom are the sources are articles you have read here, and all of whom are linked from this blog). Please let me know of any great blogs that I should add to my list.

• A Taxonomy of Legal Blogs - Ian Best, an amazingly enterprising 3L (third year law student) has organized hundreds (maybe more) of legal oriented blogs into one, very accessible, hierarchy.
  
• Death & Taxes - The Blog (Illinois) - Commentary on estate planning, estate administration, and real estate issues from Chicago-area attorney Joel A. Schoenmeyer (who also very kindly pointed me in the right direction when I started blogging).
  
• Tax and Business Law Commentary - A commentary on tax and business law developments by Maryland attorney Stuart Levine, with an emphasis on federal tax law.
  
• Wills, Trusts & Estates Prof Blog From the Law Professors Blog Network, Gerry W. Beyer, Governor Preston E. Smith Regents Professor of Law at Texas Tech Univ. School of Law (and a former Property Law professor of mine when he was teaching in Boston).
  
• Rubin on Tax (Florida) - Keep current on tax and legal issues relating to federal and Florida tax, estate planning, probate, and miscellaneous business matters from Charles Rubin in Boca Raton, Florida.
  
• The Florida Probate Litigation Blog - By Juan C. Antunez in Miami, Florida, it promises to keep you abreast of every new Florida probate decision, as well as speaking to areas of estate planning, business planning and tax.
  
• Utah and Nevada Estate Planning Blog - The name well describes the topics posted by Brian L. Olson.
  
• California Estate Planning Practice Blog - A Compendium of Matters Involving Estate Planning and Probate in California by Michelle Renee Drake and Jennifer Nicole Sawday.
  
• Massachusetts Estate Planning and Elder Law - A discussion of estate planning, elder law and health insurance matters in Massachusetts by Leanna Hamill.
  
• California Estate and Business Law Blog - By Clark Allison and focusing on tax, business and estate planning.
  
• Rule of Law (Canada) - Proving a perspective on legal issues from the county to our north, British Columbia attorney Stanley Rule discusses wills, trusts and estates law, elder law and estate litigation.
  

For those who read You and Yours Blawg, the above offerings should be on your watch list as well.

Best Blawg List - A Taxonomy of Legal Blogs

Category: Miscellaneous Musings

For those of you who follows blawgs, or law blogs, like this one, I was introduced to the amazing site of A Taxonomy of Legal Blogs by MauledAgain, the tax law blog of Professor James Maule.

In A Taxonomy of Legal Blogs an amazingly enterprising 3L (third year law student) has organized hundreds (maybe more) of legal oriented blogs into one, very accessible, hierarchy.

This is a fabulous gateway to the thoughts of lawyers around the country, and should be bookmarked by all and explored at your leisure.

Hurry up! Cross the Road! Don't be Old and Slow!

Category: Miscellaneous Musings

I know that everyone in LA loves their cars, but it seems that being old and slow while walking is now a tickable offense for "obstructing traffic".

As you read this headline story from Yahoo News today, think that someday you too may need a little extra time getting from Point A to Point B, and wouldn't it be nice if you didn't get fined just for slowing down.

Woman, 82, Gets Ticket for Slow Crossing - Yahoo! News: "An 82-year-old woman received a $114 ticket for taking too long to cross a street. Mayvis Coyle said she began shuffling with her cane across Foothill Boulevard in the San Fernando Valley when the light was green, but was unable to make it to the other side before it turned red.

She said the motorcycle officer who ticketed her on Feb. 15 told her she was obstructing traffic.

"I think it's completely outrageous," said Coyle, who described herself as a Cherokee medicine woman. "He treated me like a 6-year-old, like I don't know what I'm doing."

"I'd rather not have angry pedestrians," [Los Angeles police Sgt. Mike]Zaboski said. "But I'd rather have them be alive."

Others, however, supported Coyle's contention that the light in question doesn't give people enough time to cross the busy, five-lane boulevard.

"I can go halfway, then the light changes," said Edith Krause, 78, who uses an electric cart because she has difficulty walking.

On Friday, the light changed too quickly even for high school students to make it across without running. It went from green to red in 20 seconds.

Councilwoman Wendy Greuel said she has asked transportation officials to figure out how to accommodate elderly people.

"We should look at those areas with predominantly seniors and accommodate their needs in intersections" she said."

US Supreme Court - Oregon's Assisted Suicide Law Legal

Category: Elder Law, Estate Planning, Miscellaneous Musings

From Wills, Trusts & Estates Prof Blog - the United States Supreme Court Upholds Oregon's Assisted Suicide Law:

"The United States Supreme Court has upheld Oregon's assisted suicide law in a 6-3 opinion released today (January 17, 2006).

In 2001, United States Attorney General John Ashcroft determined that assisted suicide was not a legitimate medical practice and thus doctors who prescribe the deadly drugs would be in violation of the Controlled Substances Act (CSA)...

In today's opinion, authored by Justice Anthony Kennedy, the court recognized that the federal government has the authority to punish drug dealers and pass rules for health and safety but that in the case of Oregon's"

See also: Supreme Court Upholds Oregon Suicide Law, AP, Jan. 17, 2006.

"The Supreme Court upheld Oregon's law on physician-assisted suicide yesterday, ruling that the Justice Department may not punish doctors who help terminally ill patients end their lives.

By a vote of 6 to 3, the court ruled that Attorney General John D. Ashcroft exceeded his legal authority in 2001 when he threatened to prohibit doctors from prescribing federally controlled drugs if they authorized lethal doses of the medications under the Oregon Death With Dignity Act....

A Pew Research Center for the People and the Press poll released Jan. 5 found that 46 percent of Americans support a right to assisted suicide while 45 percent oppose it. Assisting suicide is a crime in 44 states, including Maryland, as well as the District. It is a civil offense in Virginia. In three states -- North Carolina, Utah and Wyoming -- the law neither prohibits nor permits assisted suicide. Ohio's Supreme Court has decriminalized assisted suicide, but state regulations do not condone it.

State referendums supporting assisted suicide have failed in California, Maine, Michigan and Washington. A bill failed in Maryland in 1995 and 1996."

Mummy of Woman Who Died in '03 Found in Front of TV

Category: Elder Law, Miscellaneous Musings

This story definitely falls into the category of strange but true:

Woman Who Died in '03 Left in Front of TV - Yahoo! News: "The mummified body of a woman who didn't want to be buried was found in a chair in front of her television set 2 1/2 years after her death, authorities said. "

The story goes on the say that the elderly woman instructed her caregiver to allow her body to stay at home, and the caregiver was merely acquiescing to the request, so this isn't necessarily shades of the movie Psycho.

The tale does make you think about the plight of the homebound elderly, as this could easily have been a news item about neglect instead of adhering to a person's wishes (unusual though they may be).

Another Blogger with Similar Themes - Andrew Ewalt from CT

Category: Miscellaneous Musings

I have recently come across and been enjoying reading Andrew Ewalt's Law Blog, described as: "Helping individuals, families, and business control their affairs, protect their families and preserve their assets, through effective, prompt and reasonable legal services, including wills, trust, powers of attorney, living wills, probate and estate administration, buy sell agreements, asset protection, elder law, nursing home, Medicaid planning, business law, contracts, establishing LLC's and corporations, not-for-profits, residential real estate, commercial real estate, reverse mortgages." Andrew practices in Hartford, Connecticut.

As the postings in Andrew Ewalt's Law Blog have similar themes to the postings here (see a recent list below) this can be another source of information on planning issues.

Recent Posts
Picking A Guardian For Your Children: Part 1
Trademark Infringement: Part 2
Trademark Infringement: Part 1
Charitable Giving Tax Benefits
PRotection For Key Employees
Amending A Will
A Client Thank You

Supreme Court Rules -Feds can take Social Security to pay Student Loan Case

Category: Miscellaneous Musings

From Yahoo News - Supreme Court Rules in Student Loan Case:
"The Supreme Court ruled unanimously Wednesday that the government can seize a person's Social Security benefits to pay old student loans.

Retiring Justice Sandra Day O'Connor wrote the decision that went against a disabled man, James Lockhart, who had sued claiming he needed all of his $874 monthly check to pay for food and medication.

His government benefits had been cut by 15 percent to cover debts he incurred for college in the 1980s."

Click for full text of LOCKHART V. UNITED STATES (04-881), 376 F.3d 1027, affirmed.

How TV's CSI got computer forensics wrong

Category: Business Law and Planning, Miscellaneous Musings

Courtesy of the Date Forensics firm of PG Lewis & Associates, LLC:

"Good morning. Below is an amusing and accurate observation which points out that the hit TV show CSI did not follow forensically sound guidelines while investigating a hard drive. The brief piece also describes the procedural error’s implications in court.

How CSI got computer forensics wrong
OUT-LAW News, 17/11/2005

A team of computer forensic investigators has pointed out that a character in a recent episode of hit TV show CSI: Crime Scene Investigation failed to follow a basic rule of looking for evidence: don't switch on the computer.

Experts at CY4OR, based in Bury, England, praised CSI for bringing computer forensics to the forefront of public awareness; but they say it does little to reflect the correct and essential procedures that must be put in place when there is suspicion of criminal activity.

In the offending episode, chemistry boffin Greg Sanders (played by Eric Szmanda) walks on to a crime scene, turns on a nearby computer and begins accessing email. Bad move, says Joel Tobias, Managing Director of CY4OR. This is exactly what budding investigators must not do, he warns.

"Not only could this potentially damage evidence, any incriminating data that was uncovered would undoubtedly be thrown out of a court of law as the proper evidential procedures would not have been put in place," he said. "The evidential continuity would have been compromised and a criminal case could collapse."

The temptation for IT departments to become digital detectives and deal with a breach of security in house is understandable, says Tobias, as companies worry about investor confidence, company reputation and business in general. It can also be fun. However, there are a few basic steps to follow, to minimise exposure and resolve the situation as quickly as possible.

CY4OR's guide to crime scene investigations
1. Treat the matter seriously. Tell your legal team not your colleagues about your suspicions.

2. Do not inform your IT department. Instead, hire computer forensic experts.

Professional analysts from reputable companies adhere to ACPO (Association of Chief Police Officer) guidelines, can identify digital evidence quickly and ensure that it will stand up in court by following the correct procedures. They can even image your computers at night, to avoid inevitable discussions by the water cooler.

The principal of forensics which says that every contact leaves a trace cannot be emphasised enough, says Tobias. "There is a time and a place to leave it to the experts, and this is it," he warned."

Redesigned THOMAS (Library of Congress) Website - A Portal to Capitol Hill

Category: Miscellaneous Musings

From bespacific, "Redesigned THOMAS Launched Today:
Sharing navigation and design similarities with the Library of Congress site as well as the U.S. National Archives and Records Administration site, today's launch of the upgraded THOMAS Congressional information site offers citizens, educators and researchers additional browse and search features (including the ability to Search Multiple Congresses, from the 101 to the 109; links to full text treaties; and a Presidential nominations search feature with links to Senate hearings). This year was the twentieth anniversary of the site, which has undergone a series of changes, updates and redesigns."

THOMAS is THE source for what is going on at Capitol Hill, and now is an improved portal to federal law in effect and in creation.

About THOMAS (Library of Congress): "THOMAS was launched in January of 1995, at the inception of the 104th Congress. The leadership of the 104th Congress directed the Library of Congress to make federal legislative information freely available to the public. Since that time THOMAS has expanded the scope of its offerings to include the features and content listed below.
Bills, Resolutions Activity in Congress Congressional Record Schedules, Calendars Committee Information Presidential Nominations Treaties Government Resources For Teachers Help and Contact "

You can browse bills and their legislative history, and search for them by text, number, and sponsorer.

Information available on THOMAS includes:

• Bills, Resolutions
  
• Activity in Congress / Yesterday in Congress
  
• Congressional Record
  
• Schedules, Calendars including Days-in-Session Calendars
  
• Committee Information
  
• Treaties
  
• Government Resources - THOMAS contains a list of legislative and other government resources. THOMAS also provides resources for learning about the legislative process and resources for legislative researchers.

Harriet Miers - The Unknown Nominee - From the ABA

Category: Miscellaneous Musings

From the American Bar Association Journal, a look at the Supreme Court nominee from the perspective of the attorney bar.

"'Rather an unknown.' That's a statement that could describe Harriet Ellan Miers, President Bush's latest nominee for associate justice of the U.S. Supreme Court. But it's actually a headline topping a 1981 New York Times news analysis about President Reagan's then-nominee Sandra Day O'Connor. "

The story continues at HARRIET MIERS� �UNKNOWN� STORY:

American Bar Association gives Judge Roberts its Highest Rating

Category: Miscellaneous Musings

The American Bar Association traditionally vets candidates for the Supreme Court by reviewing their judicial history and cataloging interviews with associates, colleagues and opposing counsel. In doing so for Judge Roberts, the ABA Journal reports that "The ABA Standing Committee on Federal Judiciary found John Roberts 'well-qualified,' its highest rating, in his nomination to be chief justice of the United States, the committee chair testified Thursday.
In prepared testimony before the Senate Judiciary Committee, chair Stephen L. Tober said Roberts meets the highest standards required not only of a justice but also of a chief justice." See ROBERTS GETS ABA'S HIGHEST RATING

Are you really liable if someone trespasses on your property and gets hurt?

Category: Miscellaneous Musings

As a property owner, do you ever wonder what happens if someone comes onto your property uninvited and gets injured? A burglar breaks into your business and hurts himself by tripping over carpet that is not tacked down, sues you and wins - an urban legend or not? A child climbs your fence and gets into your pool and is injured - are you at fault?

From a legal perspective, "negligence" can be defined as a "failure to act with the prudence that a reasonable person would exercise under the same circumstances". You need to be aware that the "reasonable person" may be found to have different standards of reasonableness then you do. Also, more then one party can be negligent in a single accident.

As a property owner, you have a responsibility under the law to keep your property clear of items that might cause harm to other, or to notify others of their existence (ie "Keep Out - Dog" or "Keep Out - Well"). You have a heightened responsibility to protect any "attractive nuisance" such as a pool, from children, as the law tends to assume that children will wander and are not as knowing as adults (not to mention they may not be able to read those signs you put up).

So even in a situation where you took no action to cause harm to another, you may be found liable to some degree because you didn't take any action to prevent harm to another.

However, being found to be partially at fault for harm to another is not the end of the inquiry. Instead, depending on how much "at fault" you are deemed to be, and how much "at fault" another party is deemed to be, and where the accident took place, will determine if you are required to pay damages to anybody else.

There are several theories of sharing responsibility when negligence causes harm to another.

• Pure Contributory Negligence - If the damaged party is even 1% at fault, that party is entirely barred from recovery. If your trespasser is deemed 5% at fault for the damages, and you 95% at fault, the trespasser is totally barred from recovery.
• Pure Comparative Negligence - The damages that can be awarded to the party at fault are proportionately reduced by the amount to which they are deemed at fault. If your trespasser is deemed 95% at fault for the damages, and you 5% at fault, you will be liable for 5% of the total damages.
• Modified comparative Negligence - A combination of the two. The damages that can be awarded to the party at fault are proportionately reduced by the amount to which they are deemed at fault. However, if the damages party is more then 50% or 51% at fault (depending on the state) they are totally barred. So, if your trespasser is deemed 60% at fault for the damages, and you 40% at fault, you will have no liability. However, if your trespasser is deemed 40% at fault for the damages, and you 60% at fault, you will be responsible for 60% of the damages.

A chart listing the theory of how responsibility for negligence is shared by state can be found at

Matthiesen, Wickert & Lehrer, S.C. - Contributory Negligence/Comparative Fault Chart.

Google Earth - Uses in a Legal Practice

Category: Miscellaneous Musings

A tool often used in our office is Google Earth (review and download at Google Earth). It is an amazing resource that "combines satellite imagery, maps and the power of Google Search to put the world's geographic information at your fingertips." Once downloaded (you must have a newer machine to run), you can literally fly over the earth from one location to another, and actually look at a location and its surrounds. Want to see a map overlay? Click a button. Looking for nearest hospital? Click a button. Beyond being a really neat tool to check out your house, there are some practical applications to consider

* In Elder Law .... Your parent lives far from you and is considering moving. You can get a birdseye view of the neighborhood and proximity to other locations.

* In Business Law ... Look at the locations of your customers and competitors business to get a sense of who they are. Small shop or large? Class A space or Class D space?

* In Real Estate ... Look at properties and their neighbors. If selling, see how yours compares to the neighborhoods in size and location. If buying, what else is around.

* In Estate Planning ... Plan a vacation to celebrate that your finally completed your estate plan, named guardians, did asset protection planning, and otherwise put an important aspect of your life in order.

Google Earth allows you to "see" things from your computer that otherwise would require an exploration trip in the car. There are many more creative uses, but it is also fun to fly around the world at the flick of your fingertips.