Wednesday, December 17, 2008

Criminal vs Civil

I've noticed an alarming trend lately in which prosecutors are criminalizing behavior that used to be handled in the civil courts. The example that comes to mind is a series of cases being handled by an attorney friend in Ohio, Ken Sheets.

Ken's client is a contractor. As a regular part of his business he enters into contracts for construction. It may be improvements to a dwelling, building a barn or even new construction. The contract, inartfully drafted because he wrote it instead of retaining the services of a lawyer, generally provides that he must begin work within a number of months and sets no end time.

He has been arrested several times because the homeowner has complained to the authorities that he "stole" their money by not doing the work. In each case, the arrest came within the time period that the contract provided for him to begin work.


Since when did a contract dispute become a criminal matter? And how can a prosecutor bring charges for theft, in good faith, when it is still possible for him to perform under the terms of the contract?

What all this brings home to me is the fact that perhaps it's time to revisit the whole idea of prosecutorial immunity. If prosecutors could be sued for their charge/no-charge decisions, perhaps they would make them more carefully. In all honesty, what appears to be happening to this guy is that someone in authority has it in for him and is using the theft statutes to harass him out of business.

This simply shouldn't be allowed.


Tuesday, December 16, 2008

The Rest of the Story

Someone wrote me and asked what I thought about the banks and how they contributed to the current problems we face. Well, that one is pretty simple. Like the insurance companies who legislated away their risks, the banks lobbied the legislatures for laws that made it much easier for them to part people with their money. I point to two main areas.

First, years ago the laws did not permit the banks to charge many of the fees that they now charge. By fees, I mean $35 overdraft fees and items like that. One example - the Uniform Commercial Code used to provide that stop payment orders on checks were a service that the banks were to provide at no fee. That provision was eliminated from the UCC and banks began to charge fees for stop payment orders.

Then a provision was added to the UCC that permits banks to charge items to your account in any order they desire. So, naturally they process them in the manner that creates as many overdraft items as possible. If there is one big item that overdraws your account and ten small items that would all clear with no overdraft, they process the big item first then charge you ten separate overdraft fees for each of the ten smaller items. This provision of the UCC was actually litigated in Ohio and the court ruled in favor of the bank (even though Ohio law contains an implied duty for the parties to act in good faith and I don't see any way that such a scheme could be executed in good faith).

Then there is the way that they process debit cards. They will actually permit you to charge something to the card even though you don't have the money in the account - then they charge you a fee. Once again, not good faith.

But the biggest thing I think the banks did wrong was the pushing of credit as a manner of living beyond peoples means. Want a vacation - get a "home equity loan." It used to be that second mortgages were considered the last resort of people who were already in financial trouble. But the banks changed the name to home equity loans and marketed them aggressively and everyone had to have one. Finance that lifestyle instead of working for it.

A couple of years ago there was a commercial for one of the credit cards that showed a girl stepping off a curb and breaking her heel. Suddenly, someone hands her a credit card and she gets new shoes, new dress, new hair and goes dancing down the street while the song "Downtown" is playing. I remember watching this and thinking that my dream case would be a class action lawsuit against that credit card company for violations of the false or misleading advertising provisions of the various state's consumer practices act. The commercial basically was designed to falsely imply that "if your life is bad, just go shopping with our card and everything will be perfect." Until the bill comes in the mail, that is (but they left that part out).

But those kind of cases don't often walk into small law offices in Lebanon, Tennessee, so the dream remains unfulfilled. Maybe I should get past my disappointment by getting a home equity loan and buying an airplane.


Monday, December 15, 2008


Every once in a while I get a case that illustrates how this country got into the mess we're in (in my opinion). Anyone who knows me knows that I lay the blame at the feet of the banks and insurance companies (and the lawmakers who permitted them to purchase laws tailor made to increase their profits).

This case deals with insurance subrogation. Years ago, subrogation was not permitted. If you purchased an insurance policy and your insurer had to pay a claim, your insurer bore the loss. After all, they had issued the policy and collected the premiums. They took the risk.

Beginning in the 70's state legislatures began to listen to the insurance company lobbyists and to change the law to permit subrogation. That permitted the insurer to collect premiums but, if they had to pay a claim, their risk was reduced - they might be able to collect the amount they paid from a third party. Most people thought that was OK, since the third party most likely had insurance (after all, the insurance companies lobbied to get laws passed that required motor vehicle insurance - even making it a crime to drive without it).

But the insurance companies didn't want to stop there. They wanted protection even if the third party was uninsured and unable to pay. So, back to the legislatures they went to obtain passage of laws that permitted them to notify the appropriate state authority and obtain suspension of a driver's license if they made demand upon him for some sum they believed they were due.

What's wrong with this? Well, the case I am handling started with an auto accident in which it appears that my client was not at fault. At least not entirely at fault. The other driver filed a claim with his own insurer and was paid. That insurer then assigned their right of subrogation to a third party and that party made a naked demand for payment against my client.

At this point, there has been no determination by a court or other authority that establishes my client is at fault. He just gets a letter that says "you were at fault. Pay us." When he declined, the third party filed with the Department of Safety saying "we have determined that he is at fault, he owes us $x, please suspend his license."

My client then gets a letter from the Department of Safety saying, please deposit with us the sum of $x or your license will be suspended. He contacts me and we file an appeal. The matter will be heard in January. We intend to make them prove that my client was at fault (and Tennessee is a comparative negligence state, meaning that the fault of the other guy has to be factored in here).

I suspect most people either pay up or lose their licenses, though.

What a country.


Thursday, December 11, 2008

Internet Privacy

Well, here's proof that internet usage can be bad for you. I am handling a case in Cannon County, Tennessee where the defendant is charged with possession and distribution of child pornography via e-mail messages. The interesting (and disturbing) thing is how he got caught.

All of our e-mail messages are being monitored for objectionable content.

America Online (and all of the other internet providers) have entered into agreements with the National Center for Missing and Exploited Children to report any instances of child pornography being sent by e-mail via their systems. The NCMEC then tips local authorities, who obtain search warrants for the person's computer.

The NCMEC was created by an act of Congress. Its board of directors is loaded with government officials, primarily from Federal law enforcement agencies. Despite this, they maintain that they are not a government agency and that their actions do not violate the 4th amendment (which applies only to governmental searches).

This is pretty disturbing. I am not a supporter of child pornography. But I am a big supporter of civil liberties. Here, we have the government making an end run around the 4th amendment by creating a non-governmental agency to accomplish searches that would be illegal if conducted by the government. And, for the most part, the Federal courts have permitted this.

The issue of whether they are a governmental agency doesn't seem to have been directly raised. I will be raising it via a motion to suppress. In this case, the defendant has to fight to prevent a conviction since Tennessee law prohibits him from pre-trial diversion or even probation. It even prevents him from remaining on bond pending appeal (although I think that provision is also invalid since it basically diminishes his right to an appeal). So, this case is going to trial unless I can get the evidence tossed. Of course, it's unlikely that a trial court will rule that way, so an appeal is likely.


Wednesday, December 10, 2008

Driver's License Suspensions

Here's another thing that has been bugging me recently. I had a child support case in which I was defending a father who had gotten behind on his payments. The goal was not to get the payments reduced or eliminated, but merely to give him time to get caught up.

The issue that bugged me was the threat to suspend his driver's license until the arrearage was paid. Tennessee law arguably permits such an action. The question I have is - why?

It seems that we're suspending driver's licenses on a regular basis. A DUI carries a mandatory 1 year suspension for a first offense (higher for subsequent offenses). Perhaps that is understandable (at least for multiple offenders) since driving is an essential element of the offense. (I won't get into the issue of administrative suspensions prior to a finding of guilt, such as are permitted in Ohio, since Tennessee has had the wisdom not to enact that law.) But what connection does a driver's license have with the non-payment of child support? None.

In fact, there is probably a reverse connection. Does it not make more sense to leave a person's ability to drive intact, so that he (0r she) may continue to work and make the money needed in order to pay the support. Take away his right to drive and you have actually decreased his chances of paying child support. If the goal of the law is to get child support paid, this is counterproductive.

And it goes beyond child support. In Ohio, even minor drug crimes carry a mandatory six months suspension, even when there is no connection between driving and the crime.

How do laws like this get passed? Well, first there is this mistaken assumption that driving is a privilege that is granted us by the state. We have no right to drive. The state owns that right and permits us to drive only so long as we are good little citizens. If we do something the state doesn't like, they can take away our privileges (in essence, ground us like teenagers who bring the car home too late).

My opinion is that laws like this get proposed by someone who has an axe to grind and is blinded to all of the consequences. When the law gets debated, any dissenting voice gets stifled by the argument - if you oppose this you are in favor of not supporting children or you're soft on crime. So the law gets passed. The thing that really bothers me is that the courts ought to be looking at these laws critically and overturning them. Yet the courts just seem to buy in and permit the legislature to do what it wants.

Perhaps someday sanity will return to the process. Until then, we just muddle through as best we can.


Tuesday, December 9, 2008

Slipping Through the Cracks

I was in criminal court yesterday for an arraignment on a DUI case. Since my case was way down the docket, I had time to sit and watch. I was struck by the number of cases of people who were asking for public defender appointments, but who did not qualify.

Why is this interesting? Well, basically the appointment of a public defender is based upon income. Now that times are tough, economically, people who have income often have only enough to meet their monthly obligations, with nothing at all left over for legal fees. They can't tap home equity, since often that is already gone or they can't get a loan in the tight credit market. Several people had made every effort to retain counsel, saying that they had called several attorneys in town, but couldn't come up with the money they wanted.

One gentleman simply told the judge he had no option except to plead guilty and accept whatever punishment the court wished to impose.

It's obvious that people are falling through the cracks. Most lawyers won't accept anything less than full payment on criminal cases. We call that Rule 1 - get the money up front. When people can't do that, and they don't qualify for a public defender, what are they to do?

Nothing much, I suppose, which is a shame. I think that the formula for qualifying for a public defender needs to change.

It was also interesting that the judge placed great emphasis on the fact that some of the defendants had posted bond. Apparently, if you are able to post bond you are able to afford an attorney. Put another way, it looks like people may be forced to choose to sit in jail in order to secure legal representation. I did read a case from one of the states whose law I follow that held that practice to be unconstitutional. I guess that hasn't filtered down to the trial courts yet. But it is unconstitutional. You simply can't force defendants to choose between incarceration and their fundamental right to counsel.

In my practice I try to make legal services affordable. And I often violate Rule 1 if I think I can trust the person to make payments (although I am careful to make sure that the payment schedule gets the entire fee paid before the case is over). But there is only so much a solo practitioner can do.

I would like to have talked to some of the defendants and told them that I would work with them on fees, but face to face communications like that is considered to be unethical. One complaint and you're done.

The end result is some people who needed a lawyer didn't get one. I left before the court decided what to do with the gentleman who thought he had no choice but to plead guilty. I hope it worked out for him.


Friday, November 21, 2008

Level of Advocacy

I was in court recently in a Tennessee city that will not be named and I happened to watch a couple of lawyers trying cases. I was struck by the approach that they took. Basically, each stepped to the podium to question witnesses with a printed paper. The paper must have contained a set of questions they were going to ask.

Their entire examination of the witness consisted of them asking a question and then making a mark next to that question on their list. They never looked up from the list. Never looked to see what the witness's demeanor was. Never looked at the judge to see how he was reacting.

And, worse, even when the witness said something that I thought might have made an impact on their case, they never deviated from their pre-printed questions to explore the witness's answer. They just moved on to the next question.

While I was watching, I happened to recall a case from a couple of years ago in an Ohio court. I was watching because I had a passing interest in the case, having formerly represented one of the parties in a related matter. The attorney questioning the witness asked something about the meaning of a document. The witness gave her answer, then made the statement "Of course, that is just my spin on it." The attorney then just moved on to his next question, as if he never heard her.

My reaction at the time, when the witness made the "spin" comment was "Now, you've got her." What I would have done was immediately repeat what she said, then remind her that we weren't there to put spin on things, but to tell the truth. Then I would have gone back and revisited every question asked and every answer she gave that wasn't favorable to my case and asked her "Was that answer the truth or was it simply spin?" Most likely, she would say it was the truth, but I would ask "How do we know?"

And I would have kept doing that until the judge made me stop or it began to become annoying (which is why it's important to watch the judge and jury while you are questioning witnesses).

What all of this is building up to is wondering about the level of advocacy in the system today. Are most lawyers now reduced to just reading questions and making checkmarks? Are they teaching that in trial practice in law school?

I hope not. I hope that the examples that I have seen are just a few isolated incidents.


Tuesday, November 4, 2008

Killer October

October was a killer month at my little office. I had 27 court appearances during the month. Many of these were morning in one county, afternoon in another, making it nearly impossible for me to be at the office much at all.

Thankfully, we have the technology to sit in court while waiting for a case to get called and get work done. I have to say that Tennessee is lagging behind many states on such things as internet access in the courtrooms. Having internet access is crucial to such things as remote access of files. Without it you have to do what I basically did - load up the laptop and briefcase with the things you need to work on and then upload them back to the server when you get back to the office.

Tennessee had scheduled a pilot program for enabling technology in the courtroom - electronic filing being among the things they were looking at - but the administration canceled it. I hope that they re-evaluate. If it is just a money issue, perhaps that would be a good place to spend some of the surplus from the IOLTA accounts.

By the way, after the killer October, I took a week off to rest and recharge. Will be back in the office Thursday.


Tuesday, October 7, 2008

Radio Appearance

I will be making an appearance on "Spotlight on Your Business" on a Hartsville, Tennessee radio station next Thursday, October 16. They issued an invite after seeing me appear in the yellow pages up there.

It will be interesting to see whether the appearance generates the same number of phone calls and web page accesses as the tv appearances did a couple months ago.


Monday, October 6, 2008

Another First Monday in October

We've arrived at another first Monday in October and the United States Supreme Court is back in session. I always look forward to their decisions as they give me lots to talk about here.

This October also marks the first anniversary of my having opened this office in Lebanon. It's been quite a year. I have to say that I am pleased with the progress I made this first year. The office is operating on a paying basis and it is getting close to being able to sustain an expansion - hiring a staff member to assist me with office chores (something I hardly ever assign to my paralegal).

I have an interesting mix of cases. There is the defamation suit (breakup ad in the newspaper that escaped onto the internet); two cases related to torts committed against kids on school buses; the murder conspiracy case that has been in the national press. And last week I took in a criminal case in Cannon County concerning alleged accessing of pornography over the internet. That case is interesting because it concerns a corporation set up by the federal government that monitors internet activity (chat rooms and the like) and has agreements (apparently) with AOL and many other ISP's who will give tips if certain types of pornography are attached to private e-mail. They do this without warrants (using what they find as the basis for obtaining further warrants), which they say they do not require because they are not government agents. It will be interesting to test that position.

These cases, together with the normal small criminal and civil matters that are the day to day revenue producers of any small law office, made the first year here successful. I look forward each day to more cases and more challenges.


Sunday, August 31, 2008

Presumption of Innocence

Well, I guess it's official. You are no longer assumed innocent until the state proves you guilty of a crime. You're required to prove your innocence.

Ok, I am being sarcastic. But I had a potential client call me last week. He had been summoned into General Sessions court to answer charges (felony). He went into court on the appointed date and asked for time to get a lawyer. During that process he had time to speak to the District Attorney and explained to her that he didn't do what he was accused of. In fact, he doesn't even know the complaining witness. Never heard of her, never spoke to her, never has seen her.

The District Attorney replied that it wasn't any problem. They'd give him another court date and he could come back. The witness would be there and, if he could prove he was innocent the charges would be dismissed.

Unbelievable. But that's the way the system seems to be working. It started with speeding tickets, where you might as well pay - the judge is going to accept the word of the cop and the radar gun no matter what - and now it just continues to spread into all other areas of the system. I think that your average juror believes that you are guilty - that you must have done something or the police wouldn't have arrested you.

Oh well, I guess it just makes the role of the defense attorney more important than ever. It really does make it almost impossible for a defendant to get a fair shake without hiring a lawyer.


Saturday, August 23, 2008

Doctors Say Lawsuits Are Beneficial

The New England Journal of Medicine has filed an amicus brief in the United States Supreme Court arguing that lawsuits against drug companies benefit the medical practice by getting information about harmful effects of drugs into the hands of both doctors and the public.

The case is Wyeth v. Levine. You can read the news story at

Maybe next they will see that suing doctors who commit malpractice actually improves the profession by weeding out the incompetent doctors.


Friday, August 22, 2008

Oral Argument

On Tuesday, I argued before the Ohio Second District Court of Appeals. Oral argument is one of those things that I very much love to do. This case concerned the authority granted by a power of attorney to vote certain shares of stock. I have written in this blog a lot about this case, which has been going on for three years now.

The judges were great. The questions they asked were insightful and showed that they had really done their homework. They knew the issues as well as I did, and I have lived with the case for the past three years.

While I was arguing that case, the Second District released an opinion in another case that I had briefed for Les Thompson up in Dayton. That case concerned the sale of a motor vehicle and the attempt by the creditor to collect the deficiency judgment. The Court of Appeals ruled in favor of our client and held that the creditor had failed to produce evidence of the vehicle's value and that the directed verdict we obtained at the close of their case was proper.

So, it has been a pretty good week so far. The only court appearance I have left this week is in the Morrow murder-conspiracy case over in Sumner County, Tennessee. That is just the arraignment - a five minute process here - although I plan on discussing with the District Attorney the fact that I have yet to see the electronic surveillance evidence, months after parts of it were played on Nancy Grace and other national media outlets.


Thursday, August 21, 2008

The Unfairness of Immunity

I was up in Ohio Monday to try a criminal case. The facts of this prosecution were pretty outrageous. A woman who had been a victim of domestic violence for a number of years had been charged with perjury after she recanted grand jury testimony. Of course, she recanted the testimony because he had been released from jail on a low bond (again) and continued to threaten both her and her children. The prosecutor dismissed the charges against him (even though there was some evidence other than her testimony) and filed charges against her.

One of the more outrageous aspects of this case is that the Ohio perjury statute requires two witnesses to testify that the statements made under oath were false. In this case, only two people were present during the assault, him and her. He did not testify in front of the grand jury and was never even put on the prosecution's witness list. Even if he had been - they had no second witness.

Then there is the fact that the prosecutor stated in front of the judge (at the final pre-trial two weeks ago) that he did not believe she committed perjury and that he believed her testimony before the grand jury to be true. Despite this, the prosecutor refused to dismiss the case (which under those facts should never have been filed) and the judge, when asked to dismiss the case at that point, also refused to do so.

It was only after I wrote, and my in-state counsel filed, a formal motion to dismiss containing all of this information that the prosecutor consented to dismissal.

Despite all of this, Ohio confers upon prosecutors and judges an absolute and unqualified immunity from suit for their actions. We ought to re-examine this policy. Shielding prosecutors from being held accountable for their actions is what leads to this kind of misconduct.

In any event, I am hoping the client accepts my advice to file complaints with the Ohio disciplinary counsel against the prosecutor (and perhaps the judge for another issue - an apparent ex-parte communication with the prosecutor that led to the judge making a decision adverse to the client). They are immune from suit, but perhaps the disciplinary counsel will take some action even if it is just a reprimand.


Wednesday, August 20, 2008

Interesting Potential Case

I have an interesting case coming in tomorrow morning to talk. It presented itself as a client calling to discuss being fired. As I was in the process of explaining that Tennessee is an employment at will state and that you can be fired for any reason, or no reason, so long as it was not an illegal reason, it came to light that the person was fired after the doctor she worked for accessed a pharmacy database (without her consent) and discovered that she was on certain medication.

Now, it's not a wrongful termination case, it's an invasion of privacy case in which the damages are that she lost her job and income. And the doctor would only be one defendant. The operator of the pharmacy database would be another.

It will be interesting to develop this one factually. I hope the client shows. She had an appointment last week and was a no show. I was interested enough in the case that I called her and asked her to reschedule.


Tuesday, August 12, 2008

New Civil Case

I am preparing to file another interesting civil case. This one is against Southwest Airlines. A couple of months ago, a woman flying from Florida to California had to change planes in Nashville. As she got onto the plane, she was accosted by a flight attendant who commanded her to turn her cell phone off (this began while the plane was still at the gate). She finished sending a text message to the person who was to pick her up in California and turned off the phone.

The flight attendant then wouldn't leave it alone. He continued to escalate the conversation until it turned into a confrontation. At some point, the plane pushed away from the gate. The flight attendant then told the woman that he would have her thrown off the plane (which he did). She was arrested for disorderly conduct, but the charges were retired by the District Attorney in Davidson County.

The flight attendant involved basically caused the entire problem. The woman complied with his request to turn off the phone and, when he said he didn't believe her, offered to let him examine the phone. His reply was that the plane was equipped with "laser beams" that detected that her phone was on.

The woman was later allowed on another Southwest flight to California.

As we all have heard, Southwest seems to be plagued with incidents of this type. I recall a young woman a year or so ago who was thrown off a plane because a flight attendant didn't like the way she was dressed. It seems like there was another incident, too. I will have to research that.

You would think that Southwest would do a better job of training its attendants. It will be an interesting case to try.


Wednesday, July 30, 2008

Pro Se Litigants

You ever wonder about how a pro se litigant can mess up the legal system? What I am speaking of is when some guy gets it in his head that he can argue a constitutional issue better than the professionals. Take, for example, a case that came down today from the Tennessee Court of Appeals that upheld the authority of the City of Knoxville to issue citations for running red lights based upon photographic evidence. You can read the opinion at

So here we are with a major constitutional question being decided by the Court of Appeals based upon a non-lawyer litigant (the city and state were represented by trained attorneys). Surprise, surprise, the court ruled against him and now everyone in Tennessee has to live with the result.

In my mind, this is a major flaw in the system. When an issue is as important as the one in this case, perhaps there should be some mechanism to make certain that the case is well argued and briefed on both sides. In many cases amicus briefs are filed and sometimes amicus attorneys are permitted to participate in oral argument. There were none here.

One can only hope that Mr. Brown secures adequate representation if he appeals to the Tennessee Supreme Court, although if he didn't preserve the right issues in the trial court and the Court of Appeals it may be too late.


Monday, July 28, 2008

Fox & Friends

Well, the interview is over. Overall it went well. The client did a wonderful job of stating her case. I didn't do as well as I would have liked. I kind of stammered my answer to their question. Basically, the setup is a little awkward for my taste. You are in a dark room with only the camera lights. You can't see the people you are talking to on a monitor or anything. And, when you start to speak, you hear yourself with a delay in the earpiece.

That last is very distracting. Enough so that I don't think that I want to do it that way again. If ever anyone wants me on a national news show I will be happy to go to them, but doing it remotely just doesn't work well for me.

Now I know why other people I have seen doing those shows look a little stiff and awkward.

Still, it was worth doing once - for both the client and the experience.


Sunday, July 27, 2008

Fox & Friends

It looks like I will be on Fox News Channel with my defamation case client. The segment will air (live) tomorrow morning at 5:40 AM Central time (6:40 AM Eastern). Have to get up at 4:00 AM to make it to Nashville where they will patch us in to wherever the hosts are (New York City, I assume).


Thursday, July 24, 2008

School Bus Case

Today I filed the civil suit against the Sumner County Board of Education relating to the 7 year old child that the bus driver left on a running bus that she had parked in the bus garage. The same bus driver later assaulted and battered the older brother of this child and one of his close friends. The later assault somehow led to charges being filed against the children for filing a false report. I posted about that case a week or so ago and you can read about it below.

The civil suit combines both the left on the bus aspects and the assault aspects. The family of the two brothers was interviewed on WSMV Channel 4 here in Nashville today. I thought the interview went well and the resulting story (in the My Cases in the News section to the right) was very well done.

One of the most interesting aspects of this case is that the school district took no substantive action against the driver. For the first incident she was given three days paid suspension (a vacation). For the second, she escaped punishment when the children got charged with a crime (the case was nolled on the day of trial). The school district stated tonight (for the news story) that the driver was still a driver.

It will be interesting to see how this case progresses. The simple fact is that it is difficult to see how anyone (sitting on a jury) could take the side of the school board. They have 30 days to file an answer. Stay tuned for developments


Wednesday, July 23, 2008

Defamation Case

Today I filed a defamation case in the Wilson County Circuit Court. This is an interesting case where two local newspapers permitted a stalker to publish an ad about his victim. The ad contained many untruths about an engagement and gifts to be returned.

When the Nashville radio station saw the ad, they contacted the stalker and invited him onto their morning drive show, where he spent several minutes telling even more untruths. The morning DJs must have thought it was funny.

The case was shown on the Channel 4 news last night. I posted a link to the story at the right side of this blog page. I will post a copy of the complaint on my JDSupra page in a bit.


New List

I added a new list to the right side of the blog page. It links out to news stories about my cases.

Yesterday, I was interviewed on WSMV, Channel 4 in Nashville, regarding a defamation case I have filed against two local newspapers and a local radio station (owned by Clear Channel Communications). I was very impressed with the way they handled the story.


Tuesday, July 8, 2008

Grand Juries

I just ran into an interesting situation. I have a client in an assault case, just indicted by the grand jury. The issue is that the only witness who testified before the grand jury was the police officer who took the report and who was not a witness to any of the events of the alleged crime.

We all know that a prosecutor can indict anyone at any time. This case underscores that. If you can be indicted without any direct testimony - only hearsay - what purpose does a grand jury serve. Recall that the original purpose of a grand jury was to add a layer of protection for criminal defendants. Before you could be arrested and put to trial, a grand jury had to find probable cause.

But what protection does a grand jury serve today? If a grand jury can be presented nothing but hearsay and can indict do they serve any useful purpose? I don't think so.

So, what could we do? Well, the U.S. Supreme Court has held that an indictment can be based upon evidence that would be inadmissible at trial. The Tennessee Supreme Court has ruled similarly, in a 1978 case, but they also cautioned prosecutors against relying solely upon hearsay testimony in grand juries. Perhaps it is time to revisit that issue. This case could give me a mechanism to do that.

I am considering filing a motion to quash the indictment. If I do, I expect that it would be overruled based upon the precedent (remember, we can file motions even if the law is contrary so long as we can make a good faith argument that the law ought to be changed). That would lay the groundwork for appeal. The problem with that is that I fully expect to win this case at trial, so no appeal would be necessary.

But it is something to think about.


Thursday, July 3, 2008

Treatment of Children

Here is an interesting case, that I have been working on for a month or so:

The case actually started long before my client got involved when a young girl got left behind on a school bus. She had fallen asleep on the ride to school and the bus driver allegedly failed to check before parking the bus in the garage. Later the girl awoke and managed to find help, but not before she picked up some symptoms of carbon monoxide poisoning. The parent of the little girl sued (with someone other than me handling that case).

Flash forward a few months and the little girl's brother and his friend (my client) were riding the bus to school. When they arrived, the same bus driver held them back and accused them of being bullies. When she had finished talking to them, as they were exiting the bus, she cuffed them on the back of the head.

As they were supposed to do, they reported the incident to the principal. Their parents were called to school and it was agreed that the bus driver would be assigned to another route. My client's parents thought that it would end there, but later that day received a call from the local police department asking them to come in.

When they arrived at the police station, they were separated from their son, who was taken into an interrogation room and questioned for about four hours. During this time, although a children's services worker was present, he was denied the right to talk to his parents. He was told that he was going to detention and would never see his parents again - unless he said that he lied about the bus driver hitting him. Eventually, he said she lied, but refused to sign anything. When it was explained to the parents, they refused to sign, too.

He then gets charged with making a false statement to the police. He is 11 years old.

He had his initial appearance in juvenile court a couple weeks ago and the case is set for trial in mid-July. This is one that will almost certainly be headed for civil court once we dispose of the criminal charge.

When I explained to the District Attorney how the child was handled, she just shrugged. As if that was normal. I can't believe that we've gotten to the point where we would condone treating children that way. Children should have a parent present at all times during questioning. A children's services worker is not a parent. They are an employee of the state. A child who has had no contact with them will not trust them like a parent. Only a parent should be able to waive a child's rights and permit him to make a statement.


Wednesday, July 2, 2008

Bounty Hunter Case Discovery

The magistrate judge ruled today on my motion to conduct early discovery in the Priebe v. Tidwell case. Basically, he deferred an actual ruling for 20 days to give the one defendant whose name and address are both known time to review the motion and respond. But he also indicated that he didn't feel that there would be any reason why the discovery should not be permitted early.

I would expect the named defendant to retain counsel and we should be able to work out an agreement to get the answer to the proposed interrogatory. That will permit the case to proceed on track.


Supreme Court on Punitive Damages

This week the U.S. Supreme Court weighed in again on the issue of punitive damages. The case was Exxon v. Baker ( ). This is another in a string of decisions that establish that the justices of this court simply do not like the idea of juries setting punitive damages.

Of course, that shouldn't be surprising given their background. There isn't a plaintiff's lawyer amongst them. They all come from either the defense side or government.

In the Exxon case, they limited their holding to maritime cases rather than make it an across the board decision. They limited punitive damages to a 1:1 ratio with the compensatory. If you have $1 million in compensatory, you can get $1 million in punitives.

They reached this ratio after looking at jury verdicts in a number of cases in which punitive damages were awarded. They found that the vast majority of those cases imposed punitives in less than a 1:1 ratio. From this, they inferred a consensus among the people that punitives not exceed the 1:1 ratio.

Of course, there is another way to interpret the statistics - it seems that the system is working. There really are no runaway juries out there imposing massive amounts of punitive damages. And when they do, the judge can always remit. And if both judge and jury agree that the conduct being punished deserves a higher award isn't that just the way our legal system is supposed to work? There are always the courts of appeal waiting in the wings to knock down anything that judge and jury both get wrong.

But now we have a constitutional pronouncement from the Supreme Court that, at least in maritime cases, you can't award more in punitives than in compensatories.

What a country.


Monday, June 30, 2008

Bounty Hunter Case Filed

I filed the "Bounty Hunter" case today. It's Priebe v. Tidwell, et al, No. 3:08-CV-652 in the U.S. District Court for the Middle District of Tennessee. One interesting wrinkle - under Rule 26(d), Federal Rules of Civil Procedure, discovery can't commence until after the Rule 269f) conference. Yet, in this case there are two John Doe defendants and one other defendant that we don't have a solid address on. That information is in the hands of the fourth defendant.

That means that some discovery is necessary to learn the names and addresses of the John Doe defendants before the Rule 26 conference can be held. I made a motion today, which should be heard ex parte, to permit me to serve one defendant with an interrogatory that requires him t disclose the names and addresses of the other defendants.

I posted the motion out on my JD Supra page ( for anyone who is interested.


Thursday, June 26, 2008

Legal Writing

I had an opportunity, thanks to Les Thompson and Thompson & DeVeny in Dayton, Ohio, to attend a fascinating CLE titled "What Judges Want." At the conference, a panel of judges walked through the pre-trial, trial and appellate process and explained how judges like to see attorneys present their cases.

One of the judges on the panel was Mark Painter Of the Ohio Court of Appeals for the First District. Judge Painter is the author of "The Legal Writer - 40 Rules for the Art of Legal Writing." His book is a must read for anyone who regularly writes briefs or motions. It details the things that attorneys most often do wrong and tells us how to do them correctly.

You can find Judge Painter, and his book, at

One of the rules is to avoid the use of Latin. I had to laugh when I read it. Recently, I made a motion over in Nashville for temporary child support. Attempting to follow Judge Painter's rule, I styled it as a "Motion for Temporary Child Support." When I arrived at motion day, much to my chagrin, the judge told me that he would grant my motion and sign an order as soon as I presented him one styled "Motion for Pendente Lite Support." In that court, you are required to use the Latin. I recall laughing with the judge, who ran a good court in my opinion, telling him that I decided to try the English version since I found that using the Latin just required me to answer client phone calls and explain what it meant, but he didn't buy it. I am still required to use the Latin.

Perhaps I should send the judge a copy of Judge Painter's book.


Wednesday, June 25, 2008

New Layout

Readers will notice that I changed the layout of the blog somewhat. I picked a different template to see if it enhanced readability. After looking at the new design for most of the day, I think I like it.



Discovery in Criminal Cases

Recently I was retained to represent a young lady charged with conspiracy to commit murder. Its a case that was, before I got involved, featured on Nancy Grace and 20/20. I took the case after the prior lawyer had handled the preliminary hearing and before the case went to the grand jury. Indictment is on July 24, 2008 in the Wilson County, Tennessee, Criminal Court.

As soon as I was retained, I had the clerk make me a copy of the tape of the preliminary hearing. During that hearing, the District Attorney played tape recordings that had been made of the alleged conspirators. Since it is very difficult to hear the recordings being played into the courtrooms recording system, I sent a letter to the District Attorney asking for copies of the tapes.

Having not heard anything from him, I called over yesterday and was told that they never give out discovery prior to the arraignment. My reaction was that such a policy was all well and good, but they sure didn't have any trouble playing them for Nancy Grace and 20/20. In retrospect, it probably wasn't the District Attorney's office that released the tapes to the media. Likely it was the Sheriff's Department, who appeared on both shows.

In any event, my issue with the District Attorney's position is that there ought to be a little fundamental fairness injected into the system. No matter who loosed the tapes into the wild, it had to come from state law enforcement. That being the case, would it not be fair to let the defense have access to them earlier in the process? Shouldn't a District Attorney be at least a little concerned with being fair? Or is it all about getting whatever advantage he can get in the quest for a conviction?

I haven't decided yet whether to make a motion to get early access. The next motion day is July 15, which means that I would only gain a week. Given that, it is likely not worth it.

Maybe someday the people in law enforcement and prosecution will start realizing that how they do their job is just as important as the results that they get.


Monday, June 23, 2008

Bounty Hunter Complaint

I posted a rough draft of the complaint in the "bounty hunter" case on my JDSupra site (

Comments are welcome.


Bounty Hunters

Last week I took in a new civil case relating to bounty hunters. This case flows from a criminal case that I disposed of last week (getting my client out of jail and taking care of a simple possession and resisting arrest charge, together with two failure to appears). Basically, what happened in this case is that the client moved from Tennessee to Mississippi while the underlying possession and resisting charges, together with a couple others that were dismissed, were pending and for one reason or another didn't come back to Tennessee for his court dates. The Tennessee court ordered bond forfeited and issued a capias for his arrest.

Flash forward a few months and bounty hunters, agents of the Tennessee bondsman, kicked open the door to his Mississippi apartment, pointed a shotgun at his head and dragged him to a car for the trip back to Tennessee. Mississippi law permits a bondsman licensed in Mississippi to make an arrest, but it doesn't appear that the bondsman here was licensed in Mississippi. Mississippi law doesn't provide for bounty hunters, but does permit the "agent" of a bondsman to make the arrest. Mississippi does have a statutory process for arresting fugitives on out of state warrants but that procedure was not followed here.

Tennessee law permits bounty hunters. But before a bounty hunter can make an arrest, he must first provide local law enforcement with copies of certain paperwork. Even if Tennessee law applied to this case, they failed to provide the paperwork.

It also appears that one of the "agents" effecting the arrest "was just released from jail." There is a prohibition in Mississippi for anyone being a bondsman (and presumably a bondsman's agent) if he has been convicted of a felony. Tennessee prohibits anyone convicted of a felony from being a bounty hunter.

In investigating the filing of this case, I found it amazing the latitude that is given to bounty hunters and bondsmen to make arrests. We should keep in mind that bondsmen or bounty hunters are not police. They have little, or no, training in how to make safe arrests. They aren't bound by niceties like probable cause, etc. The proscription regarding felony convictions appears to be often overlooked.

It will be interesting to play this one out. There are some very real damages here, to property as well as to my client's business and reputation. I sent a letter to the bondsman today inquiring as to the possibility of settling, but figure that this one is headed to the Middle District of Tennessee.


Sunday, June 22, 2008

JD Supra

I finally got around to configuring my JDSupra page ( In case you haven't heard, JDSupra is a web site intended for document sharing between lawyers. Last week, I posted my first document - a motion to suppress a search based on Tennessee constitutional law.

It seems that most of the players on JDSupra are the big, public interest, firms. And what they post seems to be more documents designed to garner publicity. The site even has a Hot Docs feature that lets you flag documents for the media.

My plans for JDSupra are rather simple. I am going to post any document that I think would be of interest to a small, general practice, law firm. Things that they can actually use.

Time will tell whether the site proves useful to me or other lawyers like me.


Thursday, June 19, 2008

Fourth Amendment

This week I filed a motion to suppress in a simple possession case. The police stopped a man alleging as basis for the stop that his car had a loud muffler (I compared his with the one on my 1994 Mustang Cobra and think mine is a little louder with neither being all that loud). Then they asked him to step out of the vehicle and, based on the fact that he seemed 'nervous' they asked for consent to search his person and his vehicle. They found 3.4 grams of marijuana and some rolling papers.

This is a situation where the police obviously manufactured a reason to stop the vehicle and then obtained 'consent' to search. It happens all the time. Why do people say yes?

The reason is simple - they don't think they have the right to refuse. There they are on the side of the road with lights flashing and a couple of armed police officers asking them questions and they simply think they have to say yes.

The question in my mind is - why don't we require the police to advise them that they have the right to refuse? The United States Supreme Court, in Ohio v. Robinette, held that advising a motor vehicle detainee that they can refuse consent to search is not required by the Fourth Amendment. Why not, I ask?

The famous Miranda warnings protect our Fifth Amendment rights ("You have the right to remain silent"). And they protect our Sixth Amendment rights ("You have the right to an attorney..."). Why is the Fourth Amendment less important? It seems to me that it is more important. What is more fundamental than the right to be secure in you own person?

Fortunately for my case, the Tennessee Supreme Court has held that Article 1, Section 7 of the Tennessee Constitution provides our citizens with more protection than the Fourth Amendment. And in Tennessee v. Berrios, they indicated that courts should look critically at traffic stop searches.

In my motion, which you can read on my JD Supra page (, I argue both that the search should be declared invalid under Berrios and that it is time that the Tennessee courts adopted a rule like the one the United States Supreme Court struck down in Robinette.

This client is willing, for personal reasons, to take this as far as he must. It will be an interesting trip through the court system. Perhaps we can effect a change in the law.


Monday, June 16, 2008


One of the things that I recently accomplished is changing the office case management software away from DoingTime to a web-based application called Bill4Time. Bill4Time seems to do everything that I need - track client information, track time spent on hourly clients, do simple accounting and document storage and management.

It's not a perfect system. One flaw is in the document management piece as there seems to be no way to edit an uploaded document in place, you have to download it, edit it and upload it as a new document. I would prefer some type of built in version control and perhaps they will roll that out in a future version.

The cost is quite reasonable - only about $40 per month for my office. The best thing is that it is a web based, hosted application, meaning that I can log on and get my case and client information from any computer on the internet anywhere I happen to be. And, since my paralegal, Tara Whitacre, spends most of her time in Ohio it is easy for her to get assignments, do the work and upload the resulting document.

Anyone looking for a simple case management package for a small law office should give it a look. It can be found at There is a 30 day, fully functional, free trial.


Extended Absence

I am back after an extended absence from blogging. This spring was interesting as I was forced to spend some time in Ohio dealing with a family emergency and then faced a medical crisis of my own for the first time in my life.

I am fine now and have been back at full strength for about a month, but have been too busy digging out from under the pile of work to have time for this blog. I have been taking the time to write down ideas for topics so there will likely be quite a few posts in a short period of time.

I want to thank all of my clients who were patient with me while I wasn't able to devote my full attention to their matters. I have found that most people are generally good about things like that. There were only three clients who did not understand. Two of those were domestic relations clients and one was a simple matter of negotiating a release of judgment. Only one remains a client, the other two took their business elsewhere. The fact that only those three had such a lack of understanding speaks volumes for the people of the State of Tennessee.


Monday, February 11, 2008

Grisham's "The Appeal"

Anyone who is even mildly interested in the issue of tort reform should pick up a copy of John Grisham's new novel "The Appeal." Though a work of fiction, "The Appeal" relates a story that occurs every year in states across the land.

Basically, the plot concerns a large (fictional) chemical company that has been dumping toxins on their property. The toxins contaminate the water supply of a small town and people start dying of cancer. A law firm takes on some of the cases and bankrupts themselves in obtaining a judgment against the company.

That's where it gets interesting. It turns out that the state supreme court is divided 5 - 4 against tort reform and in favor of letting large judgments stand. And it also turns out that one of the majority is up for election and the election will be held before the appeal is perfected.

So, the big chemical company sponsors their own, tort reform friendly, candidate, spending millions in a bid to unseat the incumbent and change the court's makeup to one that is friendly to their point of view. That's as far as I will go, since I don't want to spoil it for anyone who wants to read it, but the point I am making is that this is happening all over the country. Judges who are friendly to the consumer are being replaced by judges who are friendly to big business and it's happening not because the electorate is in favor of big business but because the money that the companies pump into the race can basically buy an election.

This is a cautionary tale about how the courthouse doors are being closed to the common man who has a grievance against a business for an injury. It's about how slick marketing schemes to blame "trial lawyers" for every ill from inflation to higher insurance premiums can sway voters to elect candidates whose opinions might ultimately harm them.

Perhaps this novel will cause people to start to take a very close look at what is happening in this country, while we still have a country that people can recognize.


Saturday, February 2, 2008

Drivers License Suspension

I was reading in the Tennessean (Nashville paper, for those out of the area) that the legislature here is debating a bill that would permit police officers to immediately suspend and confiscate drivers licenses from people arrested for drunk driving. This is something that has been in effect in Ohio for some time. I am not in favor of it.

We used to pride ourselves on the fact that, in this country, we are innocent until proven guilty. How does that square up with permitting suspensions of licenses upon arrest. If a person is innocent, why should the license be suspended?

Think of the problems that this would cause an innocent person. How would they get to work? To court? To the grocery store? Why should we impose that kind of sanction upon a person who is, at this point, merely accused of a crime?

In Ohio, the law was challenged and the Ohio Supreme Court upheld it. Driving, they said, is a privilege not a right. This, of course, is the same court that a couple weeks ago held that the right to a trial by jury is not a fundamental right.

My opinion is that we are on a dangerous course in this country. More and more we are giving up rights. In this case, the right to a determination of whether you are guilty of a crime before losing your right to drive. What will it be next?

The problem is that it's hard to lobby the legislature on these issues. People who want to stand up and yell about losing their rights are shouted down by people who argue that they are in favor of drunk driving. It's not that at all. We're just in favor of keeping our rights. After all, we have these rights no matter what crime we are accused of. Due process is due process - for murderers, theives and drunk drivers.

People should be outraged. They aren't. That is both sad and scary.


Saturday, January 19, 2008

Know Your Rights!

This past week I had two individuals stop by the office with the exact same problem. Both had been stopped by police for very minor traffic infractions. Both times the officer asked to search the car and both times consent was given. And both times marijuana was found in the vehicle.

When I asked these people why they had given consent to search, each said the same thing - they thought they had to. They were completely unaware of the fact that they could say no when the police asked to search.

All this begs the question - why aren't the police required to inform them that they have the right to say no? After all, we protect people's Fifth Amendment rights by informing them that they have the right to remain silent. And we protect their Sixth Amendment rights by informing them that they have the right to an attorney (and, if they can't afford one, one will be appointed). Why are Fourth Amendment rights not similarly protected?

In some states, the answer is that they are. I was talking with Ken Sheets about these cases and he says that case law in Ohio is to the effect that, upon conclusion of a traffic stop, the officer must inform the person stopped that "you are free to go. May I search your car?"

Personally, I don't think even that goes quite far enough. How does that insure that the person understands that they can refuse? I think, to be effective, it should be in the form of a warning - "I would like to search your car. You have the right to refuse me permission to search. If you refuse, you are free to go. If you consent, anything I find may be cause for me to arrest you and may be used against you in court."

I am pondering whether to raise this issue in these cases. Both are first offenders who will not likely face jail time if convicted, which makes it a little difficult not to just make a deal and send them on their way.


Tuesday, January 8, 2008

Ineffective Assistance of Counsel

The U.S. Supreme Court issued a decision this week regarding ineffective assistance of counsel. The case is Wright v. Van Patten, No. 07-212.

In this case, counsel for the criminal defendant participated in a plea hearing by telephone and was not physically present in the courtroom. The defendant, in his post-conviction relief petitions, raised the issue of whether the absence of counsel from the courtroom (he participated via telephone), constituted the ineffective assistance of counsel.

The Court sidestepped this issue, however, by holding that habeus relief was not warranted in any event because there was no clear precedent from the Court on the topic, so no violation of the defendant's rights had occurred. The Court expressly reserved the issue of whether participation by telephone might be ineffective. In dicta, the Court said the issue would not be whether counsel who is physically present will perform better than one who attends by phone, but rather whether the lack of attendance prevented the attorney from counseling the accused.

As the courts move more and more toward embracing new technologies these types of issues are going to become increasingly common. My guess is that, in the next few years, we are going to see a few decisions come out of the courts of appeal the the Supreme Court on these issues.