LawyerHatton

Anthony Trial - Day Three

2011-05-27T09:51:00.000-05:00

Yesterday was the most interesting day yet of the Anthony trial. The state continues to build on the story that they told during their opening statement by presenting witness testimony regarding Ms. Anthony's activities while her daughter was missing (or after she drowned if you believe the defense theory).

The interesting parts came from the defense. As part of their case, the state recalled Mr. Anthony to the stand. Mr. Anthony is the person who the defense says found the girl's body and then covered up the death. If the defense stands any chance to make that theory work, they must be able to make Mr. Anthony look like someone who would do such a thing. They are going to have to confront him and win the battle of words.

Well, it appears from yesterday that they won't be able to do that. Yesterday's testimony concerned two gas cans and the duct tape that was found on them. When the defense attorney cross-examined Mr. Anthony on these issues, Mr. Anthony was able to turn the tables and absolutely dominate Mr. Baez. The question that needs to be asked is - if you can't get control of the witness and keep control of the witness when you are discussing gas cans and duct tape, how will you be able to do it when you are making accusations of abuse and covering up the death of a child?

Other cracks appeared in the defense, too. Mr. Baez simply does not seem to know his way around a courtroom. He doesn't seem to have a good grasp of the rules of evidence. At one point, he attempted to question Mr. Anthony about a photograph. However, he didn't lay the proper foundation for the admission of the photograph into evidence. The judge sustained objections. The attorneys approached the bench for a sidebar. He kept trying to ask the questions. Finally, the judge sent the jury out and basically took Mr. Baez out behind the woodshed in open court and on the record.

Another example came when Mr. Baez wanted Mr. Antony to mark on a calendar that they set up as a demonstrative exhibit. He approached Mr. Anthony and gave him a marker and instructed him to move to the exhibit. At that point, the judge told Mr. Anthony to sit down and asked Mr. Baez if he had anything he wanted to ask him (the judge). Mr. Baez looked confused for a few seconds before finally asking the judge's permission for Mr. Anthony to step down to the exhibit.

Perhaps this last is picking nits, but the cumulative effect of all these missteps on the jury will likely be profound.

But perhaps the most telling thing about the defense is something that came into play after the jury was excused for the day. The defense made a motion to strike all the testimony related to the defendant's activities during the time between the girl's disappearance and the time that the disappearance came to light. They argued that the evidence was inadmissible because it was calculated to show a lack of remorse on the part of the defendant. Evidence of lack of remorse is not admissible in the guilt phase of a trial because the defendant has not yet been found guilty of anything for which she should feel remorse. The prejudicial effect of such evidence outweighs its probative value. The defense presented case law from the Florida Supreme Court to that effect.

Talk about closing the barn door after the horses get out. Why didn't they make this motion pre-trial? Waiting until the end of three days of this kind of testimony tells me that they are disorganized. The jury has already heard it and you can't unring that bell. The only remedy would be a mistrial. So, the judge denied the motion.

It is easy for me to sit here and judge. I know far less about this case than the defense does. It just seems to me that the defense is stumbling around in the dark, while the prosecution has a well designed game plan and is executing it perfectly.

It does not look good for Ms. Anthony.

~Tim

Anthony Trial - Day Two

2011-05-26T09:32:00.000-05:00

Day two of the Anthony trial in Florida was uneventful. The state is presenting its case exactly as they laid it out in the opening statement. They began by focusing on showing the jury how Ms. Anthony went about living her life and seemed to enjoy it with no concerns at all, when all the time her daughter was missing. This is something that the defense will absolutely have to overcome if they are to get a favorable outcome.

The defense's strategy on this point was laid out in their opening statement. They contend that her behavior was a result of sexual abuse by Mr. Anthony. They reason that Ms. Anthony was used to hiding traumatic events in her life and that the death of the child was just another in a series of such events.

I have to tell you, I don't buy that. And I am a defense attorney. If they can't convince me, I doubt that they will convince a juror. But, the evidence is not all in so we should wait to draw conclusions.

The defense didn't have much to do with these witnesses. Basically, they are conceding that their testimony is true and correct and will be presenting their explanation when it is their turn. It looks like they will have to put Ms. Anthony on the stand, which will open her up to cross-examination by the state - always a risky proposition.

~Tim

Anthony Trial - Day One

2011-05-24T22:58:00.000-05:00

While working today, I set up a feed of the Anthony trial in Florida on my monitor so I could watch it. Today was opening statements. It is a fascinating case. The defense has a very interesting theory of the case and I am going to enjoy watching them try to prove it. Basically, they are now saying that the little girl died in an accidental drowning and that the defendant and her father tried to cover it up.

As I was watching, I thought how much fun it would be to take one trial, like this one, and teach a class dissecting the video once the case was over. You could make a whole semester out of a long trial, like this one is bound to be, or a shorter seminar out of a smaller trial. If the class was composed of practicing attorneys, everyone would come away as a better lawyer.

For today, I would give the prosecutor a B+ and the defense a C-. The prosecutor told a compelling story in her opening. The technique of going through each day that the girl was missing and showing the defendant's activities on that day was masterful. It told exactly the story that the state wants to tell.

The defense fell short of telling a compelling story. It was only near the end of the opening that I could really tell where he was going. He failed to reach out and grab the audience from the beginning. Their story is that the girl died in a drowning and that the mother lied about it because she was sexually abused and hiding things was normal for her just doesn't resonate. There is also an issue with the facts, as I understand them. If the mother and the grandfather hid the body, and someone else came along later and placed the body where it was ultimately found, why would the mother not have informed police long before now of this fact? Would she not have wanted a forensic examination of the original disposal site made to discover any evidence that would support her story? Answering those questions in a believable manner will be critical to the defense.

Day one caught my interest enough that I will be watching tomorrow, as work permits.

~Tim

A Judge Does the Right Thing

2011-02-15T10:46:00.000-06:00

I was just reading that a judge in Virginia refused to follow a ruling by his state Supreme Court because that ruling would result in a violation of a criminal defendant's rights as established by the United States Supreme Court. At issue is the obligation of an attorney to advise his criminal clients of the immigration consequences of a conviction or guilty plea. That obligation was imposed by the United States Supreme Court in Padilla v. Kentucky.

The Virginia Supreme Court ruled that certain procedures are not available to raise the issue in state court post conviction relief proceedings. Judge Dean Worcester disagreed and permitted a criminal defendant to raise the issue. His rationale was that not permitting the issue to be raised is the equivalent of denying the right in violation of the holding in Padilla. His opinion can be found here.

Without taking a position on whether he is right or wrong, it is nice to see a judge who understands that he has the same responsibilities as appellate court judges when it comes to following the constitution. I am reminded of a hearing on a motion to suppress that I had in a case in east Tennessee a year or so ago. The issue there was the recording of a criminal defendant in her home by a paid informant. Many states have held that these recordings are inadmissible. Tennessee has never ruled.

After completing my argument, the judge stated that he thought that it had merit but that he was going to deny the motion because, he said, these matters are best addressed by the court of appeals not trial judges. I pointed out to him that he took the same oath to uphold the constitution as did the appellate judges but he was not swayed.

The rule of stare decisis, following the court decisions that have come before, is necessary in our legal system. It is what brings stability to our rule of law. But blindly following precedent is just as damaging. A judge must be free to uphold his oath to the constitution, no matter what level of the system he represents. It is nice to see that at least one trial court judge agrees.

~Tim

Observations about a Divorce Case at the Court of Appeals

2011-02-04T11:08:00.000-06:00

I recently attended a Court of Appeals session to observe my husband, also an attorney, make his first Court of Appeals oral argument. While we were anxiously waiting for his case to be called, we had the opportunity to watch other cases.

One case in particular was very interesting to me. The facts as follows: couple dates for 1 year; wife has debilitating stroke; couple continues dating for 4 more years; couple gets married; couple stays married for 20 years; couple gets divorced.

The marital estate at issue in this case was rather large and valued at over $7,000,000. The husband made the argument at trial that because the wife did not contribute to the marital estate (because she had a stroke that he clearly knew about before they got married) by working or raising children (they were married in their mid-40s), that she should get less of the estate. The trial court awarded the husband 60% of the estate, plus a large amount of stock options and the wife 40% of the estate.

The husband appealed the trial court. His attorney stated that the husband felt like he was entitled to 70% and the wife should have only gotten 30%. In my opinion, the husband won at the trial court and this appeal was just adding insult to injury.

During the wife’s attorney’s defense of the case, she stated that she felt like she “got a whooping” at the trial court and was embarrassed to have to defend this case in front of the Court of Appeals. I was very impressed by her conversational style and preparedness.

Another fact that made this case memorable is that the wife’s attorney stated that the husband’s attorney was paid $130,000 in fees out of the marital estate before the division, and her attorney’s fees had not been paid out of the marital estate. For a $130,000 fee, I expected to see some spectacular rhetoric and wit, or, at the very least, extreme preparedness. Instead, I witnessed an attorney who was not even able to recall the value that his client had been awarded at the trial court level.

The Court of Appeals does not rule from the bench, and the parties in this case may not get a ruling for a few months. I am interested to see how the case turns out.

Rachel Rieger

Always Learning

2011-02-02T15:29:00.000-06:00

I was in court this morning to do a plea in a theft case. While waiting to get the paperwork in order, I was able to watch the jury selection in a DUI case. It turned out to be one of the best voir dires that I have ever heard.

One of the things that made it interesting was the defense attorney's education of the potential jury as to the burden of proof requirements in a criminal case. As most people know, the state has the burden of proving facts to establish all the elements of a crime, while the defendant has no burden to prove anything.

The defense attorney asked the standard questions:

If my side doesn't even put on a case, would you find him guilty just because of that? No hands popped up from the jury.

Do you promise to acquit him if you don't feel that the state has proven all the elements of the crime? All hands held up.

What if the state doesn't put on any case at all, could you still convict him? At this point, the jurors all raised their hands indicating that they could indeed convict. That's when the defense attorney told him that they had been tricked and that this goes to the heart of burden of proof. He then educated them by telling them that the state was required to put on a case, else they were not permitted to return a guilty verdict.

It was really much more effective watching it in the courtroom than it comes across in writing.

Here is the real point - I hadn't been up in a courtroom to watch a case in a very long time. I used to go watch frequently, but as business picked up I simply didn't have the time to keep that up. I think that's a mistake. I think that you learn far more from immersing yourself in the courtroom on a regular basis than you do by taking continuing legal education courses or even by trying cases (you are too wrapped up in your case to really learn - unless you make a mistake, that is. You always learn from mistakes).

I am seriously considering making it a requirement of this firm that every lawyer attend at least one jury trial per month. Including me. I think that would be a great way for each of us to develop, and keep, the skills we need in order to try cases.

~Tim

Wrongful Denial Settlement

2011-01-25T18:00:00.000-06:00

Today the firm settled the first of three pending wrongful denial of insurance claims cases that we are currently handling. This one involved the theft of an automobile and the insurance companies denial of coverage for the claim.

It seems more and more insurance companies are denying claims out of hand. We are close to settling both of the remaining two cases.

~Tim

First Win

2011-01-22T12:35:00.002-06:00

Last week Rachel picked up her first win in a juvenile criminal case by getting a dismissal in a contributing to the delinquency case. Congratulations Rachel. I am sure it will be the first of many.

~Tim

Judge Acknowledges Inequality of Representation

2011-01-15T18:23:00.000-06:00

It has long been obvious to us little guys how difficult it is to file lawsuits on behalf of individuals against either the government or big business. Defendants like those have enough money to hire experts and obtain legions of lawyers who can generally bury us in paperwork and expense of litigation.

This week Federal District Judge Nixon, here in the Middle District of Tennessee, acknowledged the problem when he ordered a plaintiff's counsel to get more help. The case involved a challenge to the redistricting of a school district. Of course the school district, despite their constant claims of being strapped for cash, hired the biggest and most expensive law firm they could find (from Washington D.C. no less). That law firm hired what was described as a "handful" of experts.

Of course, the plaintiffs couldn't afford to compete with that, so when they showed up at the hearing with only a local lawyer and no experts, the judge noted the disparity. He then ordered the plaintiffs to seek the assistance of the NAACP Legal Defense Fund. Plaintiffs' attorney stated in comments after the hearing that he had already sought such help and was turned down.

This is, of course, a problem with the system. It seems that, if you have the resources, you can simply buy a victory - unless the plaintiff is very lucky. That's not always true, many times defendants attorneys will recognize the equities of the situation and settlements can be reached. But it is true enough of the time to present a problem.

I am not sure that Judge Nixon's solution will work - what happens if the plaintiffs can't find any organization to help? But it at least acknowledges the problem.

A newspaper article about the case appears here.

~Tim

The Right to Appointed Counsel in Civil Contempt Matters

2011-01-14T14:21:00.001-06:00

In a recent South Carolina Supreme Court case, Turner, the defendant, failed to pay child support in the amount of nearly $6000 and had not made payment in about a year and a half. The lower court held him in willful contempt of court and sentenced him to twelve months in jail, and this sentence was upheld by the South Carolina Supreme Court. (See Price v. Turner, South Carolina Supreme Court Opinion No. 26793).

The United States Supreme Court will hear the case to determine if an indigent defendant charged with civil contempt, as in Price v. Turner, is entitled to an appointed attorney to represent him or her in the case.

The American Bar Association recently filed a United States Supreme Court amicus brief in which they make the argument that appointed counsel should be provided by and paid for by the court when the indigent defendant faces incarceration for contempt, civil or criminal, of court.

The ABA’s arguments state that deprivation of the defendant’s liberty warrants the appointment of counsel. In essence, the argument is that just because the contempt is labeled “civil” in form, the resulting jail time makes the appointment of counsel necessary. The blurring of the lines between civil and criminal matters, as in child support contempt cases, makes this discussion necessary. The U.S. Constitution’s Sixth Amendment provision for the right to assistance of counsel in criminal prosecutions comes into play as well. Just because these cases are being labeled “civil” does not mean that they are not actually criminal prosecutions, bringing with them Sixth Amendment protections.

An economical discussion also is found in the ABA’s amicus brief which states that while appointed counsel will cost the state money, appointed counsel will also be able to “guard against the improper use—and the costs—of incarceration.

In sum, this case will be heard by the United States Supreme Court and many questions will hopefully be answered to determine whether civil contempt defendants, when facing incarceration, will be entitled to appointed counsel.

Rachel Rieger

The Impact of Ransom v. FIA Card Services on the Bankruptcy “Means Test”

2011-01-13T17:08:00.001-06:00

The Bankruptcy Code uses a statutory formula known as the “means test” to determine whether a debtor qualifies for a Chapter 7 or Chapter 13 bankruptcy case. Simply put, the means test compares the debtor’s household income averaged over the past six months with the median income of the state in which they reside. If the debtor’s income is higher than the median, there is a presumption that the debtor has the means to pay creditors and a chapter 7 is inappropriate. The debtor is forced into a chapter 13. The means test is also used, in some districts, to determine the amount of the debtor’s chapter 13 payment.

In determining the six month average income, the debtor is permitted to take certain deductions. The law says that those deductions may be calculated using the IRS standard deductions that the IRS uses to calculate debtor income when making payment arrangements or forgiving taxes. One of those deductions regards expense related to motor vehicles. That amount can include the amount of a car payment.

In the recent Supreme Court case Ransom v. FIA Card Services, the question before the Court was whether the debtor could claim a car payment deduction for a car that he owned free of any debt. The Court held that the debtor could not take a deduction for a payment that he did not have: “A debtor who does not make loan or lease payments may not take the car-ownership deduction.” A person who owns a car free of debt is entitled to the “Operating Costs” deduction for all driving-related expenses. However, a person may not claim the “Ownership Costs” deduction because that allowance is for the separate costs of a car loan or lease.

This holding has several implications for debtors. First, debtors may now be forced to make larger chapter 13 payments to unsecured creditors. Second, the debtor may be forced into a chapter 13 instead of a chapter 7. There is also currently a case before the Court to determine whether the means test is used to determine the chapter 13 payment or whether a debtor may use the difference between the amounts on Schedules I and J (income and expenses). That case, together with Ransom, will have a big impact on a debtor's ability to file a chapter 7 or to afford the payments of a chapter 13.

Brad Russell

Associate Attorney

Tim Hatton & Associates
104 ½ Public Square
Lebanon, Tennessee 37087
Tel.: 615-453-9934
Fax: 615-472-7868

Interesting Supreme Court Arguments

2011-01-12T18:26:00.000-06:00

The U.S. Supreme Court heard arguments today in a couple of very interesting criminal cases. The first was Kentucky v. King, an appeal from a ruling of the Kentucky Supreme Court excluding evidence obtained when the Lexington, Kentucky police broke down the wrong door while chasing a fleeing felon. The facts of that case are straightforward, the police chased a suspect into an apartment building where they lost sight of him. There were only two doors into which he could have gone. They approached the wrong door, claimed to smell burning marijuana, knocked and claimed to hear sounds as if someone was "destroying evidence." They broke the door down and observed marijuana being smoked.

The Kentucky Supreme Court held the search to be illegal and suppressed the evidence. Kentucky appealed to the U.S. Supremes. From reading about the argument (wouldn't it be nice if they televised these?), it seems like Kentucky will win and yet another of our protections against illegal search and seizure will go away.

The second is Sykes v. United States, which presents the issue of whether fleeing from the police in a motor vehicle after being ordered to stop is a "violent felony" for sentence enhancement purposes under the Armed Career Criminal Act. Seems kind of a no-brainer that it isn't. Running away seems calculated to prevent violence.

You can read more about these cases here.

~Tim

Appellate Court Win

2011-01-11T14:01:00.003-06:00

I am happy to announce that my firm won a significant case in the Tennessee Court of Appeals last month. The case is Sabaski v. Wilson County Board of Education, et al. The appeal was from a dismissal by the trial court of our claims for false imprisonment and assault. The basis for the dismissal was the defendants' assertions that the plaintiffs must first exhaust their administrative remedies under the Individuals with Disabilities Education Act (IDEA).

Our position was that IDEA only required exhaustion when the basis of the lawsuit was a federal statute that was enacted for the protection of disabled individuals (such as the Americans with Disabilities Act). Since the plaintiffs causes of action were grounded in state law, exhaustion was not required. The Court of Appeals agreed and reversed the trial court and remanded the case, which will proceed to trial.

Since this opinion is very detrimental to the defendant, far beyond the scope of this single case, I expect them to seek review by the Tennessee Supreme Court. It will be interesting to see if that court accepts the case.

Anyone interested can read the opinion by clicking here.

“Practice Points” for Dealing with Divorce

2011-01-07T13:30:00.002-06:00

I am an attorney practicing primarily in family law matters, including divorce, child custody, child support, and other domestic issues. At the risk of sounding cliché, I enjoy this practice area because I love “working with people.” I have made some observations about particular behaviors people seem to fall victim to time and time again. This blog will give some practical advice to individuals who may be thinking about getting a divorce or who are currently going through one.

I offer the following “Practice Points” to get the discussion started:

1. Does your spouse call you constantly to attempt to harass or threaten you?

*Practice Point #1: You do not have to tolerate this harassment, abuse or threatening behavior.

As soon as your divorce is filed, a temporary injunction is put in place while the divorce is pending to prevent any harassment, threats, or abuse of any kind at any time, and the injunction also prevents disparaging remarks made while in the presence of your children or made in front of your employer.

If you have not yet filed for divorce, you still have the right to remain free from fear and harassment. If the threats are severe and cause you to fear for your safety or the safety of your children, you might consider filing for an order of protection, restraining order, or no contact order.

2. Does your spouse threaten to stop paying child support if you don’t comply with his or her latest demand or request?

*Practice Point #2: If the court has ordered child support, the spouse may not stop payments until there is another court order stating that payments may be modified or stopped.

If your spouse stops child support payments, he or she may be held in contempt of court for failure to comply with a court order. Your spouse is simply trying to manipulate you when he or she threatens to stop paying child support. He or she does not have the right to stop payments until there is a new court order in place to modify the support amount.

The consequences of being found in contempt vary, but a contempt charge may result in the violator being put in jail for up to six months for this violation of a court order to pay child support. In addition, the violator will be required to pay back the amount owed, and this “back child support” is commonly referred to as an arrearage.

I welcome the submission of any question concerning child support, divorce, or child custody matters. If any reader would like it to be addressed either in the blog or to the reader personally, please contact me and I would be happy to provide some information. My contact information is:

Rachel Rieger, Attorney
Tim Hatton & Associates
Phone: (615) 453-9934
E-Mail: Rachel@lawyerhatton.com

Introducing Brad Russell

2011-01-04T15:35:00.003-06:00

Brad Russel just made his first post to this blog. Brad is a new associate here who is focusing on consumer, small business and entertainment law. As part of our office new year's resolutions all associates will be making frequent posts to the blog.

~Tim

The Difference Between Sales Tax and Use Tax and How This Can Effect Your Business

2011-01-04T15:29:00.004-06:00

In today’s market it is common for even small local businesses to conduct their business all over the country. Modern technology allows orders to be received by phone, fax, mail, e-mail, and the internet from out of state customers. However, with great opportunity for profit comes great responsibility. When dealing with out of state sales, it is important to know the basic definitions of the two types of retail tax: sales tax and use tax.

Sales Tax is imposed on retailers for the privilege of selling tangible personal property at retail. The tax is measured by the gross receipts from retail sales. The obligation to pay sales tax is on the seller.

Use tax is imposed upon the storage, use or other consumption in this state of tangible personal property purchased from a retailer. The use tax rather than the sales tax applies to purchases shipped from an out-of-state point to an in-state consumer. The obligation to pay use tax is on the purchaser. However, many customers fail to report and that has resulted in recent changes to state laws.

The states that have changed their laws to place a duty upon out of state vendors to register, report sales, and collect sales tax have generally followed a single pattern. While the burden initially remains with the customer, if a company has a nexus within the state it is required to register and report sales and collect and remit the tax.

“Nexus” is a means of connection, a link between an in-state business and another state. What constitutes a nexus depends entirely upon the state’s law defining that term. It can be as little as making one sale in the state, or as much as maintaining an office there. The only way to find out if a business has a nexus with another state is to analyze the language of the state’s nexus definition. Because each state has a different nexus definition, this analysis must be done for each state individually.

It is important to note that the laws of most states require companies to respond to requests for information to determine whether they meet that state’s nexus requirements. Failure to respond to these requests could result in a company being sued by the taxing authority or having civil penalties imposed upon them.

As more and more states respond to their budget crises by attempting to increase sales tax revenues, it is important for every business owner to keep in mind that, even though they may not consider themselves to be doing business in a state, they might in fact meet the state's requirements for withholding sales tax. If there is any question, consult your business attorney.

Brad Russell

Introducing Rachel Rieger

2010-10-07T23:45:00.003-05:00

I am happy to announce that my firm is expanding. On September 13, I added a second lawyer - Rachel Rieger - who will be managing the firm's family law practice. Rachel will be handling all new divorce, child custody, support and visitation cases. She also expects to build a juvenile law practice.

To reflect that the office is no longer a solo practitioner, the firm's name has been changed to Tim Hatton & Associates.

I am very excited to have Rachel on board. We both look forward to continuing to provide quality legal services to our clients at an affordable price.

~Tim

Remaining Silent

2010-06-05T23:49:00.001-05:00

Well, the U.S. Supreme Court did it again. In the case of BERGHUIS v. THOMPKINS, they held that a person can't invoke his right against self-incrimination, the famous "right to remain silent," by, in fact, remaining silent.

In this case, a defendant was interrogated for several hours, during which time he said nothing. He literally remained silent, just as the Miranda warnings he was read told him he could. As the interrogators were leaving the room, one of them asked if he believed in god, and when he said 'yes' asked him if he would pray for god's forgiveness. It was disputed whether the suspect replied, but the interrogator testified that he said 'yes' and that was deemed to be an admission of guilt.

In addition to the nonsensical ruling on the right to remain silent, I find it offensive that police interrogators are permitted to prey on a suspect's religious beliefs in order to psychologically put the suspect in a frame of mind to confess. Such confessions are as coerced, in my opinion, as those obtained by beating the confession out of the suspect.

This one, they got wrong.

~Tim

Supreme Court Decisions Have Consequences

2010-06-04T23:41:00.002-05:00

Two years ago, the U.S. Supreme Court ruled, in a case out of Georgia, that it was reasonable for a police officer to ram a motorist being chased for a traffic violation. The motorist lost control of his vehicle and was seriously injured. Since the Supreme Court held that the officer's actions were reasonable, the motorist was denied any recompense due to the doctrine of qualified immunity.

Recently, I have been observing that many police vehicles now come equipped with front bumper extensions that are apparently designed to aid the driver of the police vehicle in ramming operations. I guess that, since the Supreme Court says it's ok, they want to be able to ram with impunity without damaging their police cruiser.

Someday, some happy day, the justices of the Supreme Court will realize that there are ramifications to the decisions they make. Or perhaps we will wise up and start electing presidents and senators who will appoint justices to the Court who come from a more "common" background.

Just one lawyer's opinion.

~Tim

Recurring Theme

2010-02-06T14:54:00.002-06:00

I just picked up another criminal case that presents the issue of whether it is permissible under the Tennessee constitution for the police to send a wired informant into a home and then use the recorded conversation as evidence. People who follow my blog will recall that the same issue was presented in the Morrow murder solicitation case.

In the Morrow case, the issue was not resolved since the DA made us an offer that we couldn't refuse (she spent 15 days in county jail, served on weekends). At the sentencing hearing, he admitted that the motion might have some merit.

Now, in a sale of schedule II case out of east Tennessee, the same issue is presented. Perhaps this time we will get a ruling.

~Tim

A Juror Who Does His Job!

2010-01-28T12:15:00.002-06:00

I just read an interesting story by a reporter from the Washington Post. You can read it here. It describes a trial in which the reporter sat as a juror.

Although the juror believed that the defendant was guilty (even guilty beyond a reasonable doubt) he was prepared to acquit because the police testifying were proven to be lying. Another alternate juror on the case formed the same conclusion and reasoned that the lies were enough to create reasonable doubt.

This is exactly what a jury ought to do - weigh the evidence to determine whether reasonable doubt exists. If the state presents witnesses who are obviously lying, you have to question whether the state's case has any merit at all. Using the facts presented by the case on which the reporter sat, the police officer who initially lied was an eyewitness to part of a drug deal. He lied about where he was in relation to the deal as it went down and also about what he was able to see. Other officers adopted the lie and testified accordingly. The defense attorney proved this and the jury understood and realized that the testimony was not factual.

This is how the system is supposed to work. Yet, time after time, it seems as if the police get a free pass when they testify in court. Even if there are discrepancies in their testimony, the jury believes them. I have heard it put this way, "if the defendant wasn't guilty, they wouldn't have arrested him," so errors in police testimony are harmless.

It is refreshing to see that the system worked, just once (the jury deadlocked 10 - 2 to acquit, a mistrial was declared and the defendant was not retried). It is also refreshing to see the reporter question whether use of this much police time and court time to prosecute someone for a $10.00 drug deal. We do tend to spend a large part of our law enforcement budget on cases like that.

~Tim

Right to a Public Trial

2010-01-20T14:38:00.003-06:00

The United States Supreme Court ruled this week that the right to a public trial is violated by excluding the public from jury selection. In a case out of Georgia, Presley v. Georgia, a single spectator (the defendant's uncle) was present in the court room prior to the jury pool entering the court. The trial judge informed him that he would have to leave the court and also would have to leave the entire floor. He was informed that he would be permitted to return after a jury had been selected.

The defendant's lawyer objected to the exclusion of the public and set up an appeal that ultimately landed in the U.S. Supreme Court. The Court held, in a rare win for criminal defendants, that the Sixth Amendment right to a public trial extended to the jury selection phase of the trial. The case was reversed and remanded back to Georgia for a new trial. It was an unsigned, per curium, opinion so we can't see which justices voted which way. It would have been interesting to analyze that.

Still, sometimes they do the right thing.

~Tim

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Google's Entry into Legal Research

2009-12-02T18:14:00.002-06:00

Interesting news this week for small law offices who can't afford Lexis or Westlaw. Google released a legal research web site. You can access it via their Google Scholar search engine. Just to experiment, I decided to use it one day in parallel with Lexis on several research topics. I found that it consistently returned the same results as Lexis. The next day, I decided to use it to do all the research for the day just to see what it felt like.

Turns out I really like it, with a couple of provisions about how to use it. First, the default page searches all case law from any state or federal court in the country. Obviously, that isn't all that useful since you have to wade through a lot of cases that have minimal interest. The solution to that is simple - always use the Advanced Search page. That page lets you specify what states you want to search from or whether you want to search Federal Courts.

Missing is the ability to search combinations of federal courts and state courts. For example, you can't search for all Sixth Circuit and Tennessee state cases. Most likely this is because they don't have the federal cases broken out by circuit. You also can't search for only Supreme Court cases or only cases from specialized courts such as bankruptcy (bankruptcy cases are there, they are just lumped in with federal).

Also missing is linking cases together by topic like the West keynote system or the Lexis headnote system. In fact, all of the analysis material commonly found on the paid services is missing.

On the bright side, there is a citation service that provides you with lists of cases that cite the case you are reading. It's pretty bare bones, and the cases aren't sorted as those that are favorable, etc. And speaking of sorting, I couldn't find any way of sorting the results from whatever default order they initially appear. It would be nice to be able to sort them by date, then by court.

Still, Google has done a creditable job of providing a free legal research tool. It's close to something you could use to replace Lexis or Westlaw. If they will accept some feedback from the legal community, they could make Lexis and West sit up and take notice.

~Tim

Back After (Lengthy) Absence

2009-12-02T18:12:00.003-06:00

I am back to blogging after a lengthy absence caused by being woefully overworked in my practice as well as dealing with some family emergency issues. We're well into U.S. Supreme Court season and I have some comments to make on pending cases and decisions. I hope to get back to posting at least a couple of times a week.

~Tim

Arbitration in Consumer Contracts

2009-07-21T11:57:00.004-05:00

I have had a long interest in the issue of whether arbitration should be compelled when the arbitration agreement is simply a part of the boilerplate in a contract for consumer goods or services. The Ohio Supreme Court has recently held that such contracts must be enforced, even when a specific statute grants the right to proceed in a class action or as a private attorney general. The case was Hayes v. Oakridge Home, Slip Opinion No. 2009-Ohio-2054.

Ohio is one of the few states that have gone this way. Most states have held that these arbitration agreements are void as against public policy. For example, the National Law Journal reports that Massachusetts recently held arbitration clauses to be be void as against public policy. Read that article here.

To Blog of Legal Times (BLT) reports today that The National Arbitration Forum has agreed in a settlement with the Attorney General of Minnesota to get out of the consumer arbitration business. You can read that article here.

When I read the article I actually had a good laugh at this quote:

“Until Congress resolves the legal and legislative uncertainty, the cost is simply too high for users and providers of consumer arbitration,” he said.

Until then, Kelly warned, “The consequence to American consumers is that there will be no meaningful alternative to costly and unpredictable litigation.”

He means, I guess, that the consumer should avoid "unpredictable" litigation over the "predictable" pro-business, anti-consumer award that typically comes out of consumer arbitrations.

Here's the thing. Consumers can't afford to litigate small claims. Lawyers won't handle them. Take a look at the typical FDCPA claim, in which you are only going after the statutory damages of $1,000.00. Lawyers can't afford to take on a case that is only going to bring in a couple hundred in legal fees. The only way the consumer has any kind of redress is if he can aggregate his claims with the claims of hundreds, or thousands, of others in a class action. And the only way to prevent the business from continuing the practice that is in violation of law is to obtain injunctive relief by suing as a private attorney general.

Ohio has closed that door. Perhaps, as the article suggest, Congress may overturn that with a well crafted statute.

~Tim

Publicity

2009-06-17T21:25:00.002-05:00

My client in the so-called "murder for hire" case that was featured on Nancy Grace a year or so ago entered a no contest plea this week. She will serve 15 days in the county jail and can serve the time on weekends. Pretty good outcome considering that she could have received 25 years in prison if found guilty as charged.

There must have been a reporter in the courtroom since the entire plea exchange with the judge was printed up in the paper this morning. They got it correct for the most part, including the part where the DA credited the motions I had filed as being the reason why they were giving such a good deal. He said they were "not without merit."

In any event, my client in this case got treated roughly in the media when the case first began. I was not her lawyer at that point, she changed to me right after the preliminary hearing. If I had been a publicity seeking hound I could have played this one for all it was worth, but I value my privacy and that makes me value hers just as well.

Still, it would have been nice to tangle with Nancy Grace.

~Tim

Traffic Cameras

2009-06-14T21:22:00.002-05:00

Callers to my radio show continue to be intrigued by the issue of cameras installed at traffic lights and intersections so that you can be mailed a ticket for any infraction. A local city. Mt. Juliet, is considering installing them.

I happened to wonder, just the other day, exactly how the photo could be admitted. After all, in order to admit a photograph, you have to elicit testimony that it accurately depicts the conditions at the time it was taken. In the case of an automated traffic camera, who would authenticate it? No one is present when it was taken and the driver can refuse to testify.

Here is what I imagine is the case. Most cities, and states, consider violation of the traffic laws to be civil, not criminal, in nature. I expect that they will argue that the rules of evidence don't apply to the proceedings to enforce infractions caught on camera.

I don't see that the issue has been litigated in Tennessee and I haven't looked elsewhere. Perhaps someday a case will present itself and I can raise the issue (and the client will fund an appeal). Until then, it makes for interesting conversation amongst us lawyers.

~Tim

Supreme Court Requires Recusal in Campaign Donations Case

2009-06-08T11:31:00.002-05:00

The U.S. Supreme Court just ruled in the case of Caperton v. A.T. Massey Coal Company that a judge is required to recuse himself in instances where a litigant made substantial contributions to his election campaign.

In a scenario straight of of Grisham's "The Appeal" the A.T. Massey coal company, who lost a jury trial, made $3 million in campaign contributions to someone running for a seat on the West Virginia Supreme Court of Appeals. Given that much money, the outcome of the campaign was a foregone conclusion and their candidate won.

When the case arrived at the appellate court, the newly elected judge refused to step aside and then joined the majority in overturning the lower court's decision. Today, the U.S. Supreme Court said that this action violates the due process clause. The Court stated:

There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The proper inquiry centers on the contribution’s relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin’s victory.

Interestingly enough, the decision was only 5-4, indicating that four justices apparently think it's OK to buy a judge. Those four are Roberts, Scalia, Thomas and Alito.

~Tim

Defining Your Case Through News Article Comments

2009-05-16T10:04:00.003-05:00

Every trial practice class we take tells us that we have to devise a "story" of our case. The story is what we teach the jury (or judge) as we try the case. Each witness and exhibit builds our story to lead the jury to believe in its truth and, ultimately, to rule on our favor.

But how do we know that our story will resonate with a jury? That's always been more of an art than a science. We tell the story to staff members, other lawyers - anyone who will listen. If we have a client with a little money we might do a focus group. If we're lucky enough to have a client with a lot of money (and an important case) we might even hire a jury consultant to help us craft both the story and to develop a profile of the "ideal" juror. Still, we never know until the verdict comes back.

Here's another thing to add to our toolbox - one that won't cost your client a cent. Most newspapers and TV stations are now posting their articles online. And most of the online web sites permit readers to post comments telling what they think of the story.

If an article is written about your case, pay close attention to the readers' comments. They come from the general public - the same general public that makes up your jury pool. I am undecided about the ethics of posting comments of your own or otherwise interacting with the readers - I lean toward it being unethical but haven't researched the issue - but there is no harm in looking at what people say and then crafting your ultimate case presentation accordingly.

In fact, I'll go out on a limb and say that, sometime in the next ten years, we will see an attorney somewhere held liable in malpractice for presenting a case without taking readers' comments into account.

~Tim

Interesting Fee Agreement

2009-04-26T13:45:00.002-05:00

I saw a post on one of the mail lists I follow regarding an interesting fee arrangement for criminal cases. The attorney reports that his fee agreement only covers pre-trial matters and has a clause that provides that any case that goes to trial will carry an additional fee to be negotiated later.

I can see the issue he is trying to address - the situation where you charge $x and then enter a guilty plea very early in the process so that you don't have enough hours in the case to justify $x. But I would worry that, since the client knows that he will have to pay more if he maintains a not guilty plea and goes to trial he will feel great pressure to take a deal even if it would be better for him to go to trial.

It is tempting to adopt the incremental fee approach and I am going to look closely at the issue. If anyone has any thoughts on the topic I would love to hear them.

~Tim

The Supreme Court Gives and Tennessee Tries to Take Away

2009-04-25T18:07:00.002-05:00

The U.S. Supreme Court handed down a decision last week that upheld rights under the Fourth Amendment. Now Tennessee is considering a bill that would eliminate the exclusionary rule that prevents evidence seized in violation of your Fourth Amendment rights from being used against you.

Now, I think that most of us can agree that such a bill would be subject to constitutional attack but you still have to wonder what the legislature is thinking. Why is it considered so important to obtain convictions that they are willing to do it at any price? Why do they think that it is ok to condone breaking the law (the Fourth Amendment) in order to enforce the law? And since most of these cases involve such serious crimes as simple possession of marijuana or some other drug is it really that important to take the suspect off the street that we would effectively abolish the Fourth Amendment?

I really don't get it. I guess we have been lucky here in this country not to live under an oppressive government. So lucky that we have forgotten that the basic protections that are provided by the constitution are the reason why we haven't lived under an oppressive government.

The bill will likely fail, but why would they even try?

~Tim

Just When You Start to Lose Hope!

2009-04-22T09:10:00.002-05:00

Just when you start to think it's time to leave the country the U.S. Supreme Court makes a decision that actually upholds our constitutional rights. In Gant v. Arizona, the Court ruled that officers may only search a vehicle incident to an arrest if the vehicle is still within the reach of the arrestee at the time of the search.

Since the entire rationale of the search incident to arrest doctrine that was established by the Court almost 30 years ago was to protect the officer against weapons that were within the reach of the suspect or to prevent the suspect from destroying evidence of the crime this decision makes perfect sense. So why was it necessary? Well, as we all know, over the years the search incident to arrest doctrine became abused by police everywhere. Acting with the consent of courts that refused to find the searches invalid, police searched vehicles in almost every arrest. Courts had even upheld searches conducted after the arrestee had been removed from the scene and there was no possibility of his accessing the vehicle.

This decision puts an end to that.

But in my opinion they didn't go quite far enough. They created a new reason to search by holding that police may search a vehicle when there is reason to believe that evidence of the crime of arrest is to be found within the vehicle. If you are arresting for a DUI, then you can search the vehicle for alcohol. If for drugs, then you can search for drugs.

How this last exception is going to be managed I don't know. If you have the right to search for drugs but find a weapon can you charge for a weapons violation? I don't see why not, but all that will have to be litigated. The rationale for permitting the search seems to be destruction of evidence, so why would not the access rule apply?

It's certainly a positive ruling. Now if we could just educate the public so that they would know that they don't have to give consent to search when asked we might make some real progress.

~Tim

DUI to Reckless

2009-04-20T12:49:00.002-05:00

Last week I was successful in getting a DUI reduced to a reckless driving over in Davidson County. I wish all DAs were as easy to get along with as that one was. Basically, the test results showed the client was barely over the limit and there may have been some issues with the stop, so it made sense to just reduce it and be done.

In other places it's a little harder. You wind up fighting out all the motions first, then getting it reduced after you win (or not, if you lose). Seems like it just makes more work for everyone, that way.

~Tim

Representing Yourself

2009-04-19T10:31:00.001-05:00

A few weeks ago I wrote about having observed that many people are being forced into representing themselves because they have jobs and don't qualify for being appointed a public defender but at the same time don't have enough money to cover their bills and pay for retained counsel. It turns out that my observations are a trend that has caught the attention of the New York Times. They report, in an April 9, 2009 article, that the number of unrepresented people appearing in courts is up by as much as 10%.

This is something that we need to address. People are having their rights denied simply because they don't know how to properly present their cases to the court. Judges tend to treat them exactly as they would a lawyer. If they don't know the magic words to invoke introduction of evidence that evidence stays out. Even if it should be admitted.

The Tennessee Supreme Court and the various bar associations here have established an equal access to justice program that is designed to encourage more lawyers to provide pro bono services. But is that enough?

Probably not. Most attorneys simply can't afford to do a lot of pro bono. We do try. I handled a full blown child custody trial not long ago and only charged $1,000.00. That's not true pro bono, but I did basically donate several thousand dollars worth of my time. I also try (and am one of the few who do) to work with people and work out payment plans, even on criminal cases - although that may have to stop.

This is a challenge that needs to be addressed by our political leaders. More needs to be done than just asking lawyers to do more free work. Believe me, I'd do it if I could. I love the law and it is my nature to want to help people. I just can't do it and make a living at the same time.

~Tim

Driver's License and No Insurance

2009-04-18T11:43:00.002-05:00

A few months ago I wrote here about the laws that have been passed that permit insurance company's to have your driver's licenses suspended if you don't pay their demand for subrogation. They do this by asking the Department of Safety to require you to pay in the amount of the subrogation claim and the penalty for failure to do so is suspension.

The course of events in the case I was handling was as follows:

My client was involved in an accident. He was not cited as being at fault by the investigating officer. The other driver's insurance company paid to have that car repaired. They then sent my client a letter saying "We have determined that you were at fault. Please pay us $3,000.00, which is the amount of the claim we paid our insured." My client refused, since he wasn't at fault and there had been no determination by any court that he was obligated to pay anyone anything. The insurance company then sent a claim to the Department of Safety asking them to require my client to pay in to them $3,000.00 "pending a determination of fault." Still no court case was filed. My client received a letter from the Department of Safety informing him that he must pay or face suspension of his license.

We appealed and had a hearing that focused on the issue of fault. The insurance company did not send anyone to the hearing.

The decision came down this week. My client was found not to be at fault and his license will not be suspended.

But he is out several thousand dollars in legal fees - all caused by an insurance company pursuing a subrogation claim that they had no right to pursue. I am wondering whether they ought to face some kind of liability there for his out of pocket expenses or other damages.

In any event, this happens on a regular basis. I actually had another client call last week with the identical problem. He hasn't decided whether to retain me to appeal that one, but I hope he does. Only by standing up for yourself will things begin to change.

~Tim

Winning the Lottery

2009-04-03T07:28:00.000-05:00

Someone asked me today what I would do if I won the lottery (I don't generally play). My reply was that I would keep doing what I'm doing but if I had enough I would just start working for people for free or for vastly reduced fees. I'd probably hire in a few attorneys to help increase the caseload, advertise that we would do criminal cases free and just help people out.

No, I'm not a do-gooder. I just love practicing law (so I wouldn't give it up) and I hate having to turn people away who can't pay. If I was ever in a position to do so, I'd love to run a free legal clinic.

Likely it won't happen, but it was nice to dream about it for a while.

~Tim

Traffic Cameras

2009-04-02T19:23:00.003-05:00

A couple weeks ago I handled a call on my radio show (Thursdays, 11:00 AM CT, WTNK Hartsville) about the use of video cameras to issue tickets for running traffic lights. At the time, I expressed concern about the fact that, once we start down that road, we would find it easier to use cameras for other law enforcement tasks until one day we find ourselves living our whole lives under the watching eye.

Well, I recently read an article detailing the plans of several cities across the country to use the cameras, and special software, to read license plate numbers and check them against a database of insured drivers. No insurance? A ticket will be mailed to you.

The officials quoted in the article made no bones about it - it's not safety, it's revenue. They just want the additional money.

This is why the trend is so bothersome.

~Tim

Defending Yourself

2009-03-17T11:07:00.002-05:00

I was in court yesterday for a preliminary hearing on a felony case and sat through two trials in which both criminal defendants were attempting to represent themselves. If it wasn't so sad it would have been funny to see them try to act like lawyers.

I've often commented that practice law consists of learning the "magic words." If you know the magic words, it's easy. If you don't, it's impossible.

Yesterday, one of the defendants was attempting to get photographs into evidence. He didn't know that you have to ask the witness if the photograph accurately depicts the conditions in the picture at the time it was taken. The judge tried to feed it to him, but he still couldn't get them admitted. He didn't know the magic words.

Both defendants lost. One was sentenced to 30 days, suspended. The other received a substantial fine. I thought both cases were winnable, if they had a lawyer.

I wasn't present in court when they were arraigned. I don't know if they chose to represent themselves or just fell into the crack of not being able to afford a lawyer while not qualifying for a public defender. If it's the latter, I don't feel sorry for them. There ought to be a crime called "Being Stupid." If it's the former, and they just fell in the crack in the system, then I do feel badly for them and point out that we really need to figure out how to provide lawyers for everyone who needs one.

~Tim

Second Edition of Radio Show

2009-03-12T14:13:00.003-05:00

Today being Thursday, I had the second edition of my WTNK radio show. It was very lively this week. I fielded questions on bankruptcy, child support, estate planning and (from a live caller) a question about breach of a contract for telephone services.

If it stays that lively, I think it may be successful.

~Tim

Legal Research

2009-03-12T08:24:00.003-05:00

When I got to the office this morning I found an e-mail message asking a question (I get a lot of those). The question dealt with some rights between parties that arise under one of the uniform state laws. Tennessee doesn't have any case law interpreting this particular provision.

Here's the catch - since it's a uniform state law there may be case law in other jurisdictions that would be persuasive authority. In order to know the answer, research must be done in all the states that have adopted that law.

Now most small firms who have Lexis or Westlaw accounts can only afford the package that includes their state and, perhaps, federal cases from their circuit. Only the big firms can afford all states or all federal. So, if a client comes to a little firm (which saves them money) and the little firm doesn't have access to the required database, can the little guy take the case?

In the case that was presented to me there is a large entity on the other side that would likely head to a big Nashville firm. Without doing the work up front to know I would run the risk of the big firm blowing the case out of the water simply because they can do more up front research.

Fortunately, I have access to more resources than most of the little guys, so it won't be a problem if I take this case. But this does illustrate a fundamental unfairness in the current system - which tilts the table against little firms and in favor of big firms. While the TBA and the ABA all profess their support of the sole practitioner, the rules make it ever more difficult for sole practitioners to survive.

On a final note, before I step off the soap box, since the law of all 50 states is now mostly uniform, why doesn't a license to practice in one state permit you to practice in another?

~Tim

Morrow Murder Solicitation Case

2009-03-06T06:24:00.000-06:00

The trial date has been set in the Lauren Morrow case. I will be trying that one in the Sumner County Criminal Court on June 22 and 23. Motions will be heard on April 24.

This is the interesting case of the young woman who allegedly attempted to hire someone to have her mother killed. The other two defendants accepted plea bargain deals, but Ms. Morrow prefers to go to trial. There are two motions to suppress evidence, a motion in limine and a motion to recuse the trial judge that will get argued first. If the recusal motion is granted, the trial date will likely get changed to accommodate the new judge.

It will certainly be an interesting case to try.

~Tim

First Radio Show

2009-03-05T18:20:00.002-06:00

Today was the first show on WTNK. The topic was jury duty. We didn't have any callers (not surprising for a new show) but the conversation between me and the host was lively.

Jury duty was one of those topics that should be of interest to people, who are always wondering how to get out of it if called. I had to say that I was reluctant to provide them with a sure fire method of avoiding service since the system depends on people who are willing to serve. We mostly talked about how people get on the list and what the process for getting selected to actually hear a trial is like.

Next week, the topic will be employment law - since I have had a lot of employment law questions phoned into the office lately.

People who can't get WTNK over the air can listen on their web site (link above).

~Tim

New Radio Show

2009-02-13T13:40:00.002-06:00

Beginning March 5, 2009, I will be starting a radio show on WTNK in Hartsville, Tennessee. In a half hour format, I will speak about a topic of law that might be of interest to the listeners and then will open up the phones for listeners to call and ask (simple) legal questions. The show will air each Thursday from 11:00 to 11:30 AM.

More information will be posted on the WTNK web site and on my web site.

~Tim

Time to Flee the Country?

2009-02-06T08:25:00.003-06:00

OK, so maybe it's time to flee the country. Readers of this blog know that I sometimes comment critically on laws and cases that infringe on our civil liberties. How about this one:

A bill has been introduced in the Tennessee legislature that would require people on probation, parole and some sexual offenders to wear a GPS monitoring device at all times. Presumably this would make it possible for the state to monitor their location at all times (and determine whether they have violated their probation, etc).

I understand the arguments in favor of such things. Probationers and parolees have reduced civil rights while they are subject to supervised community release. But I worry about our ability to draw lines in areas like this. We tend to go to extremes in this country, all in the name of public safety (look at all the people pushing to ban cell phone use in cars).

If we start down this GPS monitoring road, where do we stop? Will it become permissible to place GPS devices on overweight people so that they can be arrested if they go into McDonald's? After all, the government has an interest in maintaining the public health (that's the rationale for the movement to ban smoking that has swept the country). While you may think this is ridiculous now, come back ten years from now and I bet people are talking about it.

The bottom line is that we just aren't disciplined enough as a society to act with wisdom in these matters. We tend to shoot first (pass a law) and ask questions later. But it's harder to get rid of a law than it is to pass it in the first place. Once these GPS laws get passed, businesses spring up to provide the hardware and services needed to comply with the law. Those businesses then have a vested interest in keeping the law in effect. Those businesses create a powerful lobbying force that prevents the repeal of the law.

I hope this law doesn't pass in Tennessee, but I imagine it will, either here or somewhere in this great country.

~Tim

Role of Defense Attorneys

2009-01-05T11:14:00.005-06:00

Last week the Tennessee Supreme Court ruled on a suppression issue in a murder trial. The defendant had been convicted on the basis of a confession obtained without benefit of the Miranda warnings. Basically, the police interrogated the defendant, obtained a confession, then obtained a waiver of rights and obtained a second confession. Both confessions were suppressed and the case was dismissed.

The noteworthy thing about this case, from my point of view, comes in the last couple of paragraphs, where the court discusses the fact that, although it is certainly bad to let the guilty go unpunished, it is worse if we permit the government to run roughshod over our rights. If the government itself cannot conform to the law, what authority does it have to compel law abiding behavior from its citizens?

In my opinion, the court didn't go far enough in this case in condemning the interrogation tactics used by the police. In the un-Mirandized interrogation, the police lied to the suspect by informing him that they had his fingerprints at the crime scene and employed other psychological techniques to entice the suspect into confessing. Even when properly Mirandized, it is simply human psychology to fall victim to these techniques and talk. And the police interrogators are being trained in how to break down a person's free will and obtain confessions.

This comes into play in the motion to suppress that I have filed in the Lauren Morrow case and her statement should be suppressed. One of these days I hope that the court takes up the issue of the use of psychological interrogation techniques in someone who has been properly Mirandized and gives us some guidance as to what is appropriated.

Until then, it is up to defense attorneys to do what we must to protect people's rights. I have another case that is quite troubling - the Jaron Taylor case. Mr. Taylor is charged with aggravated sexual exploitation of a minor for receiving, and remailing, child pornography on the internet (AOL). How did they catch him? Well, the US Congress established what they call an independent company - the National Center for Missing and Exploited Children. They say that it is not a government agency, despite the fact that high level justice department officials sit on its board of directors. The NCMEC has agreements with the internet service providers that the ISPs will scan people's e-mail and tip them whenever they find child pornography. The NCMEC then informs the local authorities, who obtain search warrants and seize the suspect's computer.

Since everyone maintains that the NCMEC is not a government agent, there is no Fourth Amendment violation. The central issue in the Taylor case is going to be whether the NCMEC is simply a disguised government agency.

It is unfortunate that we live in a time in which our essential and fundamental rights are being eroded. Often, the only thing standing between the awesome power of the state and the lowly defendant is the defense attorney. If we stop doing our job, everyone loses.

The Tennessee case can be found here: http://www.tba2.org/tba_files/TSC/2009/daileyk_010209.pdf

~Tim

Morrow Case Motions

2009-01-05T10:44:00.000-06:00

Next week we have a hearing in the Lauren Morrow case over in Sumner County. That is the case of the young lady accused of conspiring with her boyfriend and another young man to kill her mother. The case drew national attention when it was first brought, but things have quietened down considerably.

The two motions concern suppression of her statement to the police and for severance of her trial from those of the others. The suppression issue is straightforward - she was never given her Miranda rights. The other two were - written waivers are in the file and you hear them being given on the recordings. But Lauren wasn't. That, combined with some questionable interrogation techniques, should provide a basis for suppression.

The severance motion is a little more complicated. If you read the Tennessee Rules of Criminal Procedure regarding joinder of defendants, you would think that severance is not something that is easily achieved. But, if you look at the federal and state case law, you find that severance almost always should be granted.

The main reason for this is that joint trials cannot be fairly had and preserve both the rights to assistance of counsel and confrontation of witnesses under the Sixth Amendment and the right not to testify under the Fifth Amendment. The scenario is as follows:

Suppose you represent a defendant who intends to place the blame on a co-defendant. In order to effectively present that defense you might want to call that co-defendant to the witness stand. Yet, in a joint trial, you can't do that. And while, in a separate trial, you might not be able to compel that testimony either, you can do one thing in a separate trial that you can't do in a joint trial - you can comment upon the fact that the co-defendant refused to take the stand.

If you try to comment on the refusal to testify in front of a jury that will decide the guilt of both defendants, and the judge permits you to do this, that defendant's Fifth Amendment rights have been violated. The only way that you can preserve your client's Sixth Amendment rights and the co-defendant's Fifth Amendment rights is to sever the trials and proceed separately.

It will be interesting to see the trial court's take on all of this. For anyone interested, I will try to find time to post the motions on JD Supra where they can be viewed. Otherwise, they are public record in the Sumner County Criminal Court.

~Tim

Scientific American

2009-01-04T15:23:00.001-06:00

It is rare that an article about a legal topic would appear in a science magazine, but this month's Scientific American contains an article about the famous Scopes trial (held over in Dayton, Tennessee). For anyone interested in legal history, the article is worth reading. You can fine it here: http://www.sciam.com/article.cfm?id=50-years-ago-scope-trial-witness .

~Tim

Why Me?

2009-01-04T00:04:00.000-06:00

The same client who asked me about wins and losses also asked me why he should hire me and not some other lawyer. I didn't have a ready answer, but I have given it some thought over the past couple of days.

Instead of reasons to hire me, I thought of reasons that you shouldn't use as the deciding factor in hiring me.

You shouldn't hire me because I am a sharp dresser. I'm not. In fact, most days you will find me at the office in jeans and a T-shirt (unless you catch me coming or going to court). I'm just a regular guy who happens to be a lawyer.

You shouldn't hire me because I have a big, downtown, office. I am downtown, but the town is quite small. The office is nice, though, and getting nicer as I make some improvements to it.

You shouldn't hire me because I have TV commercials that promise I will win you more money than another lawyer, or have past clients talk about how much money they got. I will never run that kind of commercial. I think most TV lawyer ads are sleazy.

You shouldn't hire me because of any of those reasons. I guess the reason to hire me is that I get good results in most of my cases. I try hard. I don't like to lose.

If those reasons aren't good enough, then you're probably better off going to one of the TV lawyers, I suppose.

~Tim

Wins and Losses

2009-01-03T22:23:00.003-06:00

A potential client asked me last week what my win/loss record was. I had to admit that I didn't really know. I also had to ask what he meant by wins and losses.

Law isn't exactly like the football game I am watching while I write this. It isn't a matter of who is ahead on points when time expires. What is a win and what is a loss is different for different matters.

Take, for example, the case I tried in Rutherford County a few months ago. My client was charged with criminal contempt for failure to pay child support. He was over $20,000.00 in arrears. There was no doubt that he owed the money, no doubt about the amount. The only issue was ability to pay.

Prior to trial, I offered to settle the case by agreeing to the amount and setting up a payment schedule. The agreement would have provided that a jail sentence would kick in should he miss a single payment (which was calculated as enough to pay the current amount due as well as an additional sum to reduce the arrears). The other side refused the offer and we tried the case.

The judge ruled that the arrearage was the amount of our offer, found him in contempt, imposed a jail sentence then suspended the sentence upon condition that he begin making payments. The amount of the payment was nearly identical to my offer.

Was this a win or a loss? You could look at it either way. It was a win because the result was good for the client. He avoided jail and was given time to get his act together and pay the support. It was a loss because the client was, technically, found guilty of criminal contempt.

Most cases I have handled fall into this category. You can look at them as wins because the results are good. You could look at them as losses because, technically, the other side prevails on its issue.

I tend to count cases like the one above as wins. It is the result for the client that matters, not the technicality of the judge's ruling.

~Tim

Collection Tactics

2009-01-01T00:01:00.000-06:00

This week I had two reports of collection agency tactics that violate any number of federal and state laws. One of them called the debtor and informed her that the caller was a deputy with her local sheriff's department. He went on to say that if she didn't make full payment before 4:00 he would be at her home to arrest her. After she called me I traced back the phone number to New Jersey. It was registered in a company name, but there is no record of that company being incorporated in any of the jurisdictions I searched. When I looked up the corporate address, it appears to be simply a mail drop.

The second incident involved a young man who was called and told that his pay would be garnished at midnight if he didn't give them a bank account number from which they could withdraw funds. He declined. Tracing back the call led to similar results.

Although the Congress passed the Fair Debt Collections Practices Act many years ago, it has done nothing to curtail the aggressive tactics of the collection agencies. In the first place, the law has no teeth. You can only obtain actual damages or the statutory damage amount of $1,000.00. These claims are too small to permit a debtor to hire an attorney and file suit.

In the second place, the collectors have simply placed themselves outside the jurisdiction. They hide - many of them, I am convinced, are offshore, with their phones simply routed through US numbers.

What needs to happen is to rethink the damages section of the FDCPA. Instead of $1,000.00 statutory damages, let's make it three times the amount of the debt. We can subject it to offset for the debt amount, but a collector who violates the law would find itself owing two times the amount of the debt to the debtor. After getting hit with a few of those, they'd clean up their act.

Then make it illegal for the collector to operate without a physical address at which they can be found. And require them to post a bond equal to the amount that they collect in a year, with that bond being used to satisfy any judgments against them. If you can't find a collector, the debtor may elect to proceed against the bond.

Now that would be a law that would have some teeth and which would help clean up an unsavory business.

~Tim

Criminal vs Civil

2008-12-17T16:44:00.002-06:00

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.

Huh?

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.

~Tim

The Rest of the Story

2008-12-16T12:29:00.001-06:00

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.

~Tim

Subrogation

2008-12-15T18:56:00.002-06:00

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.

~Tim

Internet Privacy

2008-12-11T21:09:00.002-06:00

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.

~Tim

Driver's License Suspensions

2008-12-10T10:30:00.002-06:00

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.

~Tim

Slipping Through the Cracks

2008-12-09T23:30:00.002-06:00

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.

~Tim

Level of Advocacy

2008-11-21T10:58:00.002-06:00

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.

~Tim

Killer October

2008-11-04T18:14:00.003-06:00

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.

~Tim

Radio Appearance

2008-10-07T18:00:00.000-05:00

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.

~Tim

Another First Monday in October

2008-10-06T17:51:00.002-05:00

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.

~Tim

Presumption of Innocence

2008-08-31T20:51:00.002-05:00

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.

~Tim

Doctors Say Lawsuits Are Beneficial

2008-08-23T21:28:00.000-05:00

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 http://news.yahoo.com/s/ap/20080815/ap_on_go_su_co/fda_drug_safety_lawsuit_1

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

~Tim

Oral Argument

2008-08-22T06:38:00.000-05:00

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.

~Tim

The Unfairness of Immunity

2008-08-21T09:00:00.000-05:00

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.

~Tim

Interesting Potential Case

2008-08-20T20:18:00.003-05:00

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.

~Tim

New Civil Case

2008-08-12T11:33:00.002-05:00

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.

~Tim

Pro Se Litigants

2008-07-30T22:01:00.000-05:00

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

2008-07-28T12:17:00.002-05:00

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

2008-07-27T20:00:00.001-05:00

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

2008-07-24T20:28:00.002-05:00

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

2008-07-23T09:43:00.003-05:00

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

2008-07-23T09:40:00.004-05:00

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

2008-07-08T20:46:00.002-05:00

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

2008-07-03T00:27:00.000-05:00

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

2008-07-02T19:49:00.002-05:00

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

2008-07-02T19:34:00.003-05:00

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

Bounty Hunter Case Filed

2008-06-30T22:09:00.003-05:00

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 (http://www.jdsupra.com/profile/lawyerhatton) for anyone who is interested.

~Tim

Legal Writing

2008-06-26T09:24:00.001-05:00

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 http://www.judgepainter.org.

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.

~Tim

New Layout

2008-06-25T21:34:00.001-05:00

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.

Comments?

~Tim

Discovery in Criminal Cases

2008-06-25T15:36:00.002-05:00

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.

~Tim

Bounty Hunter Complaint

2008-06-23T19:32:00.000-05:00

I posted a rough draft of the complaint in the "bounty hunter" case on my JDSupra site (http://www.jdsupra.com/profile/lawyerhatton).

Comments are welcome.

~Tim

Bounty Hunters

2008-06-23T13:02:00.002-05:00

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.

~Tim

JD Supra

2008-06-22T23:23:00.002-05:00

I finally got around to configuring my JDSupra page (http://www.jdsupra.com/profile/lawyerhatton). 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.

~Tim

Fourth Amendment

2008-06-19T22:46:00.002-05:00

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 (http://www.jdsupra.com/profile/lawyerhatton), 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.

~Tim

Bill4Time

2008-06-16T23:22:00.002-05:00

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 http://www.bill4time.com. There is a 30 day, fully functional, free trial.

~Tim

Extended Absence

2008-06-16T23:16:00.002-05:00

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.

~Tim

Grisham's "The Appeal"

2008-02-11T15:21:00.000-06:00

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.

~Tim

Drivers License Suspension

2008-02-02T21:17:00.000-06:00

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.

~Tim

Know Your Rights!

2008-01-19T11:49:00.000-06:00

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.

~Tim

Ineffective Assistance of Counsel

2008-01-08T17:04:00.000-06:00

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.

~Tim

Ohio Tort Reform Decision

2007-12-27T16:35:00.000-06:00

The Ohio Supreme Court today announced its decision in the Arbino case. Readers of this blog will know of my interest in that case, which deals with caps on non-economic and punitive damages in tort cases in Ohio. The court held that the statute was constitutional.

I have not yet analyzed the full opinion, which I plan to do over the weekend, but in reading it today one thing stood out. A majority of the court (five of the seven) appears to hold that the right to a trial by jury is not a fundamental right in Ohio, at least as applied to civil cases.

Huh?

It strikes me as amazing that five judges could sign off on something as outrageous as that. As pointed out in the dissent, the right to a trial by jury is so enshrined in the law that it is actually mentioned in the Declaration of Independence as being one of the reasons why we broke away from England. We couldn't abide by King George's abrogation of the right to trial by jury in some cases. How can that not be a fundamental right?

Since the court held that a fundamental right was not implicated, the statute was analyzed only under rational basis instead of strict scrutiny. The dissent thought it was unconstitutional under either analysis, but the majority says that the statute is rationally related to a legitimate state interest (that interest was stated as being bringing new businesses to Ohio and keeping businesses that are there) and is, therefore, constitutional.

I will undoubtedly post more, together with a link to the decision, after I take the time to digest it further.

~Tim

Supreme Court Season

2007-12-10T12:11:00.000-06:00

The U.S. Supreme Court has begun to announce decisions on cases argued early in this term. I just read an interesting one - Watson v. United States. In Watson, the court held that a person who receives a firearm in trade for drugs has not "used" that firearm in relation to a drug trafficking crime and is not eligible for the mandatory sentence that would entail. What makes this interesting is that the court had already held, in Smith v. United States, 508 U.S. 223, that a person who gives a firearm in trade for drugs has used it in a drug trafficking crime and is eligible for the mandatory sentence.

They reached these opposite conclusions through some very tortured analysis of the English language. It seems that a person who trades the firearm and receives the drugs is using the firearm to get drugs, the same way that other people use money to get groceries. On the other hand, the person who receives the firearm and gives the drugs cannot be said to have used the firearm under any possible normal usage of the word uses.

Does this remind anyone of the whole "it depends on what the meaning of the word is is" debacle?

Personally, I don't think either person should be eligible for the mandatory sentence under the circumstances of a trade. I think the reasonable interpretation of the word uses in these cases should be that the person uses the firearm as a firearm, not as a medium of exchange. It is interesting how far the court will go sometimes to reach a result.

~Tim

The Complete Lawyer

2007-11-11T12:10:00.000-06:00

Recently, my blog was chosen for inclusion in a blog directory run by The Complete Lawyer. The Complete Lawyer is an online magazine that is provided free of charge to members of many of the state bar associations. It focuses on legal professionalism and quality of life and career issues that face us as attorneys.

If you haven't yet had an opportunity to take a look at The Complete Lawyer, you should. You can access it at http://www.thecompletelawyer.com .

~Tim

Social Networking for Lawyers

2007-11-07T15:03:00.000-06:00

Hot on the heels of MySpace and Facebook comes a new social networking site exclusively for lawyers. It's called LawLink and you can reach it at http://www.lawlink.com/.

The theory of these sites is simple, you create a page that lists information about you and your practice, then you invite colleagues to join. As people link to your page (and you link to theirs) your network builds. It's a way to communicate, build business, and learn from others.

Built into the system are messages (like e-mail) and forums (like group e-mail systems). This particular site, being new, is still being built so some features are not yet available. Still, it's worth checking out. You can take a look at my page and perhaps send me an invitation to yours to help our networks grow.

~Tim

Medical Malpractice Legislation in Kentucky

2007-11-05T11:21:00.000-06:00

Returning to the tort reform theme, yesterday's Lexington Herald Leader reported that Kentucky Governor Ernie Fletcher has proposed a compromise bill that would attempt to make the insurers happy without imposing caps on medical malpractice awards in actual litigation. How does he propose to accomplish this? Well, it seems that Gov. Fletcher wants to eliminate frivolous cases by having a review board look at all medical malpractice claims and certify their merit before the case can be filed.

Who would sit on the review board? You guessed it - doctors. Talk about the fox guarding the hen house.

Now, I have no problem with states that require an affidavit from a doctor certifying the merits of the case, so long as the plaintiff can choose the doctor. That approach seems reasonable. But, when you move to an "independent" board (likely one appointed by the governor), you open up the process to politics. Is a pro-insurance governor going to appoint people to the board who will take a dim view of any medical malpractice case? On the flip side, will a pro-consumer governor (if any actually exist) appoint board members who will certify everything? This is not a good approach.

The fact is, the rules in place in Kentucky (and most everywhere else) are already capable of achieving the stated goal of Governor Fletcher's plan - to eliminate the frivolous lawsuit. There are the provisions of Rule 11, plus the added pleading requirement that a plaintiff obtain a pre-filing certification that the case has merit.

No, I am afraid this is just another attempt to permit the insurance companies to achieve their goal of writing policies while eliminating the risk that they might have to pay out on claims.

On a related note - readers who have been around for a year or so will recall my interest in tort reform in Ohio. That was occasioned by the fact that I was involved in a pharmacy misfill case up there. That case is now over, but my interest in the Ohio attempt at tort reform (caps on punitive and non-economic damages) survives. I am awaiting a decision from the Ohio Supreme Court in the Arbino case. That case was argued in April, so one would think a decision would be forthcoming soon.

~Tim

Outsourcing to India

2007-10-30T16:13:00.000-05:00

This month's ABA Journal has an article on the trend of outsourcing legal work to India. The process is basically that an attorney here in the US takes in a case, then sends all the work of drafting pleadings, contracts, discovery or the like to the outsourcing firm in India where it is handled by an attorney who is admitted (or whatever they do there) in India.

The article was silent about the ethics of this type of arrangement. I can see many issues - are you obligated to tell the client about the arrangement (if not, why not) - can you mark up the fees you pay to the Indian attorney? - are you being deceitful if you file the work as your own (see the previous posts on the topic of 'ghost lawyering?'

Personally, I don't care much for this type of arrangement. I think that if a client hires me to do a job, then they should get me and the staff that is under my immediate control, not someone halfway around the world who may, or may not, be familiar with the laws and rules under which we operate here. While I am sure that the law schools in India do a great job of educating their graduates on general principles of law, there is no substitute for the experience of practicing in a jurisdiction. I think the quality of work would suffer. I think that clients would choose another lawyer if informed of the arrangement and I think there is a duty to inform them.

I am going to post an opinion poll. Chime in and let me know your thoughts on the ethics of outsourcing.

~Tim

Proposed Bankruptcy Law Changes

2007-10-23T17:40:00.000-05:00

Congress is currently considering two bills, one in the Senate and one in the House, designed to alter the bankruptcy code to help homeowners who find themselves in the mortgage crunch. I have read both versions of the bill and think that the House version probably goes the furthest toward fixing some of the problem.

The basic problem hasn't been that the failing mortgages are "sub-prime." The problem has been that the mortgage industry has consistently made loans in excess of the value of the property. This has been litigated time and again, but it never seems to make the press. The mortgage brokers work with appraisers to get the property valued so that the loan can close. That value may be far in excess of the fair market value of the property. When it is it becomes impossible for the debtor to sell the property in the event the payment becomes too much. The debtor simply can't sell the property for enough to obtain a release of the loan.

What the House bill does is permit a bankruptcy court to cram down the mortgage to the value of the property. This would result in two things - first, the debtor could possibly then sell the property and pay off the mortgage - second, the debtor could perhaps obtain financing on the realistic value and remain in the property.

Now, this probably doesn't go far enough, but it's a start. I don't think it goes far enough because it requires a bankruptcy filing in order to cram down the amount of the loan. Congress should pass a law making it possible to cram down the loan outside of the bankruptcy process. If you ask our congress people they will tell you that the threat of bankruptcy will make the mortgage lender more willing to work with the debtor, pre-bankruptcy, but I don't see that happening. When someone is struggling to pay the debt load on a property, or is behind, it becomes an adversarial process fairly quickly. If a debtor is unable, or unwilling, to file bankruptcy he would have no better bargaining position under the proposed law than he has under the old law.

Still, it is a step in the right direction. Please write your congressman and ask for support for this bill. The bill numbers for each version are - House : HR3609IH Senate: S2136IS

~Tim

Up and Running

2007-10-20T09:31:00.000-05:00

I finally have things up and running in the new office space in Lebanon. The final piece, internet access, was installed yesterday. Last week was the first week that I was actually open here and seeing clients. I had several, which is encouraging. I think this office will be productive.

I am currently developing a marketing plan. In this month's ABA Journal there was an article that gave tips for marketing a small law firm. I am happy to report that I was already following most of those tips.

Perhaps the biggest marketing item on the agenda is that I am writing a column for the Wilson Post, the newspaper with the highest circulation in Wilson County, Tennessee. That column will focus on legal news that is of interest to the lay person, such as rights under the Federal Fair Debt Collections Practices Act, credit reporting laws, consumer protection laws, landlord/tenant, criminal law and the like. The column should be available online and I will post a link here when it is. The first appearance will be Wednesday, November 7, 2007.

I also have a long list of topics to blog about, compiled during my absence. There have been some interesting developments in lawyer marketing online and I have some cases that pose novel legal questions that make for interesting discussion.

My most major project right now is moving into the house that I leased in Wilson County. That gets accomplished at the end of this month.

~Tim

Physical Office Space

2007-09-29T13:39:00.000-05:00

Well, it looks like my experiment with running a practice with no office space is drawing to an end. The problem became keeping up with client meetings. I found myself running all over middle Tennessee, from Starbucks to Starbucks, to meet clients. As things grew, I found myself spending more time in the car than I did actually working.

So, I decided to open an office. I spent some time last week looking at space in the town I want to practice in - Lebanon, Tennessee. I am happy to report that I have found what I was looking for. I am going to move into a second floor office suite on the town square. The offices used to be occupied by an established law firm that build a new building a little further out Main Street. It has pretty much everything I need and is reasonably priced.

I should start the setup process this week, with the idea of having it fully up and running by November 1, 2007.

~Tim

Bathroom Advertising

2007-09-13T14:36:00.000-05:00

On a trip to Tennessee to see clients last week, I happened to stop at a gas station outside the small town of Lebanon, TN. While in the men's room, I noticed an 8 1/2 x 11 one page ad for a law firm over in Nashville. It brought a chuckle as I thought that was an interesting place to put an ad and wondered who their target demographic might be.

Then it became clear when I read the line under the attorney's pictures. It read:

"Don't let your starter wife run off with your dream home."

Isn't that repugnant? The whole concept of a "starter wife" is morally bankrupt, in my opinion. And, to top it off, in Tennessee marital property is normally divided 50/50, absent some finding of waste of marital assets or other financial wrongdoing on the part of one of the parties. So, the lawyers are generally promising something they can't deliver. You can keep the dream home, but you will have to even it out by giving up every other marital asset.

This is what has gone wrong with the profession. We (and mostly mean the big firms who can affort the slick advertising campaigns) have sold our professional souls in the pursuit of the dollar. Our advertising reeks of used car ads. We're not a respected profession anymore - because we don't act like one.

But what can we do? From the small lawyer perspective, not much. Small lawyers generally don't get placed on the committees that are making and interpreting the rules. That honor is given to the big guys, and it's the big guys who are doing this kind of advertising.

All the small guy can do is carve out his niche and practice law with all the honor, integrity and dignity that he can muster, and hope that the public can see the difference between us and what they see in the advertising.

~Tim