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
Monday, June 16, 2008
Monday, February 11, 2008
Grisham's "The Appeal"
Anyone who is even mildly interested in the issue of tort reform should pick up a copy of John Grisham's new novel "The Appeal." Though a work of fiction, "The Appeal" relates a story that occurs every year in states across the land.
Basically, the plot concerns a large (fictional) chemical company that has been dumping toxins on their property. The toxins contaminate the water supply of a small town and people start dying of cancer. A law firm takes on some of the cases and bankrupts themselves in obtaining a judgment against the company.
That's where it gets interesting. It turns out that the state supreme court is divided 5 - 4 against tort reform and in favor of letting large judgments stand. And it also turns out that one of the majority is up for election and the election will be held before the appeal is perfected.
So, the big chemical company sponsors their own, tort reform friendly, candidate, spending millions in a bid to unseat the incumbent and change the court's makeup to one that is friendly to their point of view. That's as far as I will go, since I don't want to spoil it for anyone who wants to read it, but the point I am making is that this is happening all over the country. Judges who are friendly to the consumer are being replaced by judges who are friendly to big business and it's happening not because the electorate is in favor of big business but because the money that the companies pump into the race can basically buy an election.
This is a cautionary tale about how the courthouse doors are being closed to the common man who has a grievance against a business for an injury. It's about how slick marketing schemes to blame "trial lawyers" for every ill from inflation to higher insurance premiums can sway voters to elect candidates whose opinions might ultimately harm them.
Perhaps this novel will cause people to start to take a very close look at what is happening in this country, while we still have a country that people can recognize.
~Tim
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
Saturday, February 2, 2008
Drivers License Suspension
I was reading in the Tennessean (Nashville paper, for those out of the area) that the legislature here is debating a bill that would permit police officers to immediately suspend and confiscate drivers licenses from people arrested for drunk driving. This is something that has been in effect in Ohio for some time. I am not in favor of it.
We used to pride ourselves on the fact that, in this country, we are innocent until proven guilty. How does that square up with permitting suspensions of licenses upon arrest. If a person is innocent, why should the license be suspended?
Think of the problems that this would cause an innocent person. How would they get to work? To court? To the grocery store? Why should we impose that kind of sanction upon a person who is, at this point, merely accused of a crime?
In Ohio, the law was challenged and the Ohio Supreme Court upheld it. Driving, they said, is a privilege not a right. This, of course, is the same court that a couple weeks ago held that the right to a trial by jury is not a fundamental right.
My opinion is that we are on a dangerous course in this country. More and more we are giving up rights. In this case, the right to a determination of whether you are guilty of a crime before losing your right to drive. What will it be next?
The problem is that it's hard to lobby the legislature on these issues. People who want to stand up and yell about losing their rights are shouted down by people who argue that they are in favor of drunk driving. It's not that at all. We're just in favor of keeping our rights. After all, we have these rights no matter what crime we are accused of. Due process is due process - for murderers, theives and drunk drivers.
People should be outraged. They aren't. That is both sad and scary.
~Tim
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
Saturday, January 19, 2008
Know Your Rights!
This past week I had two individuals stop by the office with the exact same problem. Both had been stopped by police for very minor traffic infractions. Both times the officer asked to search the car and both times consent was given. And both times marijuana was found in the vehicle.
When I asked these people why they had given consent to search, each said the same thing - they thought they had to. They were completely unaware of the fact that they could say no when the police asked to search.
All this begs the question - why aren't the police required to inform them that they have the right to say no? After all, we protect people's Fifth Amendment rights by informing them that they have the right to remain silent. And we protect their Sixth Amendment rights by informing them that they have the right to an attorney (and, if they can't afford one, one will be appointed). Why are Fourth Amendment rights not similarly protected?
In some states, the answer is that they are. I was talking with Ken Sheets about these cases and he says that case law in Ohio is to the effect that, upon conclusion of a traffic stop, the officer must inform the person stopped that "you are free to go. May I search your car?"
Personally, I don't think even that goes quite far enough. How does that insure that the person understands that they can refuse? I think, to be effective, it should be in the form of a warning - "I would like to search your car. You have the right to refuse me permission to search. If you refuse, you are free to go. If you consent, anything I find may be cause for me to arrest you and may be used against you in court."
I am pondering whether to raise this issue in these cases. Both are first offenders who will not likely face jail time if convicted, which makes it a little difficult not to just make a deal and send them on their way.
~Tim
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
Tuesday, January 8, 2008
Ineffective Assistance of Counsel
The U.S. Supreme Court issued a decision this week regarding ineffective assistance of counsel. The case is Wright v. Van Patten, No. 07-212.
In this case, counsel for the criminal defendant participated in a plea hearing by telephone and was not physically present in the courtroom. The defendant, in his post-conviction relief petitions, raised the issue of whether the absence of counsel from the courtroom (he participated via telephone), constituted the ineffective assistance of counsel.
The Court sidestepped this issue, however, by holding that habeus relief was not warranted in any event because there was no clear precedent from the Court on the topic, so no violation of the defendant's rights had occurred. The Court expressly reserved the issue of whether participation by telephone might be ineffective. In dicta, the Court said the issue would not be whether counsel who is physically present will perform better than one who attends by phone, but rather whether the lack of attendance prevented the attorney from counseling the accused.
As the courts move more and more toward embracing new technologies these types of issues are going to become increasingly common. My guess is that, in the next few years, we are going to see a few decisions come out of the courts of appeal the the Supreme Court on these issues.
~Tim
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
Thursday, December 27, 2007
Ohio Tort Reform Decision
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
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
Monday, December 10, 2007
Supreme Court Season
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
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
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