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 http://www.tba2.org/tba_files/TCA/2008/cityofknoxville_073008.pdf

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.

~Tim

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.

~Tim

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).

~Tim

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

~Tim

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.

~Tim

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.

~Tim

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.

~Tim

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.

~Tim

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.

~Tim

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 ( http://www.law.cornell.edu/supct/html/07-219.ZS.html ). 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.

~Tim