Monthly Archives: August 2010

I Don’t Think We’re Talking Kim K. & Ray J. Here

I have just discovered an interesting legal blog I hadn’t seen before. The Legal Profession Blog is written by four law professors and focuses on legal ethics and issues afecting the practice of law.

The blog links to an Ohio ethics opinion suspending a lawyer for two years, for get this, looking at dirty pictures and stories depicting consenting adults, in his home, with his wife. Apparently he was also convicted of a felony for obscenity under federal law. He served 15 months in federal prison and upon release got hit with a suspension from practicing law. His story is that his ex-wife broke into his home and stole his computer, and delivered it to the FBI in order to gain an advantage in custody lititgation.

When I saw this, I thought wait, what? Then I thought some more. I suspect there is more to this than the opinion lets on. There almost has to be. I don’t think that you get 15 months at Club Fed and a two-year suspension for Googling up the Kim K. sex tape. I mean, I doubt it gets you prison time if there are stories about it on TMZ.

This whole episode brings to mind Rule 34 of the Internet. Rule 34 states that if you can think of it, somebody, somewhere, has made porn of it.

Whatever this guy had on his computer had to be to the left of dirty, into the area of really, really dirty. I won’t speculate since I try to keep the blog PG-13. But you can. What kind of blue material both depicts only consenting adults, and would also support an obscenity conviction? Let your mind wander, it won’t take long. And when you are done you will think: “Gross!” But 15 months in prison, no more law license gross? For what you looked at on your computer, in your home, with your consenting adult wife?

So, lawyer readers, be careful what you look at. Not only might it make you go blind, you might go to prison and lose your license to practice.

Is Your Defendant Absent Because She’s Serving Our Country?

One of the most annoying parts of representing plaintiffs in personal injury lawsuits is locating and serving the defendant driver with process. For non-lawyers, “process” refers to the summons issued by the court when a lawsuit is filed. The summons is an order from the court notifying the defendant of the lawsuit and directing her to respond within a particular time period. It is designed to make sure that anyone who is subjected to a lawsuit is given notice of the case and a chance to respond.

Most often, service of process is made by having a process server physically locate the defendant and hand her the papers. The process server executes a sworn affidavit documenting service, which is then filed with the court.

What if you can’t find the defendant to serve her? Or if the defendant has been served, but has never participated and seems to have vanished? You must consider filing a Motion for Alternative Service or a Motion for Entry of Order of Default.

Maryland, where I practice, is home to several major military installations that are growing all the time due to the Base Realignment And Closure (BRAC) process. Occasionally when a defendant can’t be located, or disappears after being located, it turns out to be because of a military transfer or deployment.

It is a good idea to verify this before asking for alternate service, and it is mandatory before asking for the entry of a default judgment. The Servicemembers’ Civil Relief Act (here is a nice 146 page summary from the U.S. Army JAG via the American Bar Association) gives broad (and deservedly so) protections to service members who are sued. If you need to find out if a party to your case is on active duty, the federal government provides a website for just this purpose. Do not be alarmed that your browser may not accept the security certificate, this is an issue with the DOD’s certificate process. The site itself is fine.

If you skip this step, your motion is likely to be denied and if it is not, you likely face a big problem down the road when your defendant shows up and says “That’s not fair, I was on a mountaintop in Afghanistan!”

Know Your Expert Witnesses

One thing I do every month is read the list of sanctioned physicians published each month by the Maryland Board of Physicians. It can be found online here, and usually comes out in the middle of the month, covering the preceding month. Every personal injury lawyer should do this. It’s not schadenfreude. There is a very good reason.

In the last year alone, I have discovered that two of my clients’ treating physicians have had significant licensure problems during the period of treatment. In one case, the doctor’s license was suspended the whole time she treated my client. If you are planning to rely on a treating doctor as a witness, it is best to know about these kinds of problems. In my case, I was able to name a different doctor as my expert witness. I run any doctor I am considering naming as a witness through the “Practitioner Profiles” database to avoid these kinds of problems. If you start looking, you will be surprised at how often this happens.

It is definitely worth the effort, unless you’d rather find out your expert was unlicensed during the defense attorney’s cross-examination.

New Appellate First

The Hon. Michele Hotten was sworn in yesterday as a judge on the Court of Special Appeals of Maryland. According to news accounts, this makes her the first black female appellate judge in Maryland. Officially, anyway. I know for a fact that women of color have sat on appellate panels in Maryland by special assignment, because I have argued in front of them.

I wonder how long these kinds of firsts will continue to be relevant. I have appeared before Judge Hotten many times during her time as a circuit court judge, and I can’t say that I have ever really noticed her ethnicity. Maybe to the general public, this is significant, but for me it’s not an issue. There are lots of black judges in Maryland. Unsurprisingly, they tend to be a lot like the white ones. Some are great, others not so much.

I guess every time a “first” like this is crossed off the list, we as a society take one more step toward race becoming irrelevant. That is probably a good thing.

I Have Met The Enemy, And He Is Us.

My fellow attorneys, write this down: “Offering legal services in exchange for sex is unethical.” And unlikely to succeed, if you look at this ethics opinion where a lawyer made such an offer, to two clients who happened to be lesbians. You, sir, are a genius. Enjoy your well-deserved disbarment. Disclaimer: Although this is more likely to succeed with non-lesbians, it is equally wrong and repugnant. Thanks, Walter Olson. I do not agree with you politically, but I agree unethical lawyers do everyone a disservice.

Justice Scalia trips and falls, but he is unharmed. Crap. This would have been the best slip/fall case ever, possibly even better than Judge Bork’s.
I love Judge Bork (not to be confused with Bjork). Great beard, (although not well visualized in the photo at right) and he reached the pinnacle of American achievement by becoming a verb.

Getting “Borked” now refers to defeating a judicial nominee by attackign his character and philosophy. And as an added bonus, it sounds kind of dirty.

Frivolous lawsuit category: AEG Live sues Mile High Music Festival concert bootleggers before they bootleg. “Yeah, we know what you are thinking, and it violates our copyrights.” How do you sue unknown individuals, because whoever they are, you know they are going to do something wrong, even though they haven’t yet? I think they were a “Mile High” when they hatched this idea.

“[J]udges do not have a right to use rude, demeaning and condescending speech toward litigants.” Now, where’s the opinion saying they do not have a right to disagree with good-looking, witty Plaintiff’s lawyers?

Why Can’t The Supremes Go To The Bench?

Occasionally U.S. Supreme Court Justices find the need to recuse themselves from hearing a particular case. Generally this is because of a conflict of interest. The classic example is where a Justice owns stock in a company with a case before the Court. In the near future, we will see Justice Kagan recuse herself from hearing several cases that she worked on as Solicitor General before her nomination.

This has a strange end result. Most appellate courts have an odd number of judges. The Supreme Court has nine, the Court of Appeals of Maryland has seven. The reason for this is obvious- to prevent a tie.

The potential problem is that when the Supreme Court loses a member to recusal, the case is heard by an eight-member court. This raises the possibility of a 4-4 tie. This article from the Washington Post discusses a plan to fix this potential problem. Senator Patrick Leahy has proposed allowing retires justices to be recalled for particular cases to prevent a tie, and also to promote recusal in light of an appearance of a conflict. Retired Justices occasionally sit on every federal court we have, except for the Supreme Court.

Of course, politics has reared its ugly head on Senator Leahy’s very practical idea. The dispute is over how to decide which retired Justice to recall in a particular case. Basically, how to prevent the Chief Justice or whoever makes the call from cherry picking a retired Justice of a particular ideological bent in an attempt to swing the outcome of a case.

First, I think its unfair to assume conduct like this would happen. I would hope anyone who was confirmed as Chief Justice would find the thought of doing this ethically repugnant. Second, we have had this in Maryland forever, and I have never heard of such an accusation being made about our Court of Appeals.

If it were up to me, I would do it the way they hand out overtime in union factories. Whoever had the most seniority woudl get offered the chance to sit first, and then go down the list of seniority until a retired Justice volunteers. Then when there is another case, you start where you left off on the list. Seems pretty fair, right?
Since this seems practical, it will probably never happen.

U.S. Magistrate Judge Peggy Leen Makes A Sanctions Order Sizzle

I have a lot of respect for federal magistrate judges. They spend their days handling settlement conferences, ruling on motions, and presiding over discovery disputes. Every once in a while, if they are lucky, the parties to a case will consent to a trial before a magistrate to liven things up.

Nothing sucks more than civil discovery disputes. Particularly those that involve deposition misconduct in the form of speaking objections, and motion papers inclusive of personal attacks. Here is the greatest court order I have ever seen (ABA Journal via ATL).

Judge Leen apparently got to this ruling too late to affect discovery in the case, but she’s not exactly apologetic about it. As she explains: “I am not the Maytag repairman of federal judges desperately hoping for something to do.” She thought so little of the merits of this dispute and the number of trees killed in its pursuit that she assigned her intern to read the 185 pages of transcripts submitted by the parties and to submit a memorandum. The intern was very quickly able to determine what the lawyers should have known- they were being bad.

Judge Leen isn’t exactly happy about the conduct, and describes how she would handle it in a perfect world.

If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:
I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am
an experienced lawyer and know that objections must be concise, non- argumentative and
non-suggestive. I understand that the purpose of a deposition is to find out what the witness
thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the
witness’s own words to form a legally convenient record. I know I am prohibited from
frustrating or impeding the fair examination of a deponent during the deposition. I know
that constant objections and unnecessary remarks are unwarranted and frustrate opposing
counsel’s right to fair examination. I know that speaking objections such as “if you
remember,” “if you know,” “don’t guess,” “you’ve answered the question,” and “do you
understand the question” are designed to coach the witness and are improper. I also know
that counsel’s interjection that he or she does not understand the question is not a proper
objection, and that if a witness needs clarification of a question, the witness may ask for the clarification.

ME AGAIN: You go, Judge Leen! Just the right mix of sarcasm, ridicule and contempt. But tastefully done. She has the street cred to back it up, too, since she is the only female Nevada lawyer to be elected to the International Society of Barristers, the International Academy of Trial Lawyers, and the American College of Trial Lawyers (see page 9).

I will never be a federal judge. I lack judicial temperament. I would have wanted to do something more to these lawyers than reprimand them in an order. But I suspect they will not do this kind of thing again in federal court.