Negligent Radio Station + Nintendo Wii + Water Intoxication = $16.6m Jury Award

In an interview, the great Bruce Lee once expounded upon the amazing qualities of water. He viewed its properties as a guiding philosophy to be followed by martial artists looking to improve their fighting abilities. And he was right, water is pretty impressive. When it’s a torrent it can tear down a forest, as a stream it can gradually split a mountain, and at the same time we drink it to keep hydrated and stay alive. But apparently if you drink too much of it you can die from something called water intoxication, which is exactly what happened to a woman 2 years ago. Remember that case?

Well, the family of the deceased wife looking to win a Nintendo Wii for her kids sued. Now after two years of litigation, the jury has finally reached a verdict in favor of the aggrieved family and levied a damage award of $16.6 million to be paid by the radio station.

In case you guys have forgotten about this one (and I don’t blame you as I can barely remember whether or not I brushed my teeth this morning) the woman’s name was Jennifer Lea Strange. She was a 28-year-old mother of three children who entered into a radio contests in California to win the then very elusive Nintendo Wii (which, by the way, is no longer quite as elusive and cheaper to boot).

The contest required contestants to drink large amounts of water and then hold in their urine. The contestant who could drink the most water while resisting the urge to use the bathroom the longest would win the coveted video game system. Strange won the contest, but ultimately and unfortunately lost her life in the strange (no pun intended) process.

Now some of you may be wondering why in the hell would anyone subject themselves to this kind of suffer for what is essentially an electronic toy. Well, regardless of whether or not you have children, I think everyone (except probably my parents) can all understand the very pressing need to get a person we love that “perfect gift.”

More importantly, however, Strange’s case serves as a reminder to corporations, businesses, and people in general everywhere of why you should think twice before committing poorly thought out acts that can lead to serious harm or death. And that should you decide to go forward with said poorly thought out act, if you’re a radio station have enough sense to stop and heed the deluge of warnings from your listeners.

The sad truth is LegalMatch receives many wrongful death cases every year, cases that could have been easily prevented but for the negligent actions of another party. Wrongful death cases are not just incredibly costly from an economic standpoint (i.e. lawyers fees and the potential for incredibly large jury awards for compensatory, punitive, and emotional distress damages), but from a purely human perspective, cases of negligence resulting in serious injury or wrongful death means that a person has suffered deeply and permanently. And that the harm is not only limited to the immediately damaged party, but also that party’s family. The toll is emotional, physical, and financial.

So what’s the lesson here? It’s the same one that my dad has been telling me since I was born: Don’t be stupid.

Email – It’s Fast, Easy, And Now Unprotected From Unlawful Searches

It’s official – we’re now taking our legal cues on privacy from China and South Korea. Not literally of course; though like every American court we can still look to another country’s legal statutes and cases for inspiration… though that’s going away from the point of my post today.
You remember email, right? That thing you’ve been using as your main source of written communication since the last decade? The major form of correspondence that has surpassed old-fashioned snail mail and which is relied upon by everyone from business titans to celebrities, the president, and your aging grandmother (who floods your inbox with those funny grammatically incorrect cat pictures)? Yeah, that email – it’s no longer protected against searches from the police.
“No, that can’t be right! Right? Email? They are no different than letters you received in the mail; how can they not be afforded the same protection?” Well, apparently if you think like that you’ve been preempted by a federal judge, my friend.
Specifically, this ruling comes down from and Oregon Federal Judge Michael Mosman (I almost typed Michael Madsen; if he gave the ruling I might’ve been less outraged). Judge Mosman argues that unlike regular snail mail which is handled by postal employees, e-mail should not be afforded the same protection against unlawful searches and seizures under the Fourth Amendment because when an email is sent, it goes through various Internet service providers. By traveling through these different providers, each email leaves a digital image of itself with each ISP. And apparently this fact is enough to distinguish email from regular land mail because by leaving a digital copy of itself, emails are in essence open to the ISP to read and monitor and therefore people who send emails cannot expect to have the same level of privacy as when one sends a regular piece of mail through the post office. Judge Mosman’s full opinion can be read here (please note that the link is to a PDF).
Sound mental? Yeah, well it should. Judge Mosman seems to hang his ruling on the notion that because emails aren’t sealed in envelopes like a written letters, people should expect it to be read. Now to be fair, police would still need a warrant to search through your email. However, they’ll just need to submit the warrant to an ISP that has your emails to get access to them, thereby completely bypassing you and giving you no notice before invading your private emails.
Now on one hand, Judge Mosman’s argument makes some sense. Junk mail in the form of post cards and brochures are almost never sealed and the courts have generally viewed these as forms of advertisement and therefore not protected under the Fourth Amendment since it’s argued that junk mail is meant to be seen by as many people as possible. However, this is also where Judge Mosman’s argument breaks down because private emails aren’t advertisements, but are actual private communications between parties.
“But Andrew, what about the whole issue of emails leaving digital copies of themselves on ISPs and not being sealed like normal letters?” Well let me answer that question, too, and thank you for asking so kindly. Though emails are not physical sealed, they are often digitally encrypted to prevent prying eyes from seeing its contents. Therefore, an analogy can be drawn between sealing and encryption since they both show the sender’s intent to keep their communication private. Furthermore, like postal workers who we trust not to open our mail, similarly we trust our ISPs not to read our emails.
Anyway, all my ranting is meaningless until someone challenges Judge Mosman’s ruling or the legislature passes a law that gives emails the same protection against unlawful searches and seizures that physical mail enjoys.
So get started people, write your senators and congressmen, just don’t email them – for now.

Estate Planning Procrastination Rampant

If you could make sure that all your money, property, and other important belongings were given to exactly the right people, wouldn’t you do it? The question seems like a no-brainer but the reality is that the majority of Americans do not do this!
A 2008 study found that 58% of Americans do not have a will. I find this number to be shocking. I know that death and dying is an unwelcome topic, however dying without a will is a really bad idea. This holds true whether you are worth millions or a lot less. Wills, trusts, and other estate planning tools give you the power to decide how to distribute your estate.
When an individual dies without a will (or when they have an incomplete will), their estate goes through intestacy, which basically means the state decides how your estate will be distributed. This is especially risky if you have step or adopted children as some state’s do not allow an adopted or stepchild to inherit in intestacy, or those non-biological children inherit less.
A recent article I read outlines the top 9 excuses for people gave for not making any type of estate plan:
(1)I don’t see a need for an estate plan
(2)I don’t plan on dying
(3)I don’t plan on dying – at least not soon
(4)I don’t want to pay for it
(5)I don’t want to spend the time
(6)I don’t want to talk about my family
(7)I don’t want to talk about my money
(8)I don’t want to ruin my kids
(9)I don’t trust my kids
As you can see, some of these excuses are just avoiding the inevitable. One of the beauties of estate planning is that you have the ability to change the majority of your plan as situations change. Without an estate plan, you are putting your finances and property at the mercy of a judge who has no idea what you and your family are like.
A recent LegalMatch study found that the majority of people interested in preparing for their future were more interested in overall estate planning than drafting a single will or trust. These findings make sense in that those individuals that are thinking about wills and estate planning are really trying to maximize the benefits and thus are creating more complicated schemes than just a will or trust; and those individuals who are not are in the majority and doing nothing to plan. In addition to the ability to specifically provide for your family and loved ones, there are tremendous tax benefits to creating a will and/or trust.
It is not necessarily that I think everyone needs to embrace their own death. Rather, I am advocating for embracing the lives you will leave on your death. Estate planning is such a powerful tool and for all the time that people spend worrying about money and their families in their lives they should take a little time and worry about them after they die too.

LegalMatch Site Data Shows High Interest in Wrongful Terminations

According to our internal traffic statistics, it appears that one of the most popular law library articles on our website is about wrongful terminations.
Does this mean that your employer is going around firing employees left and right, just for fun? Probably not…unless you work for this guy.

More likely, the current state of the economy (in case you haven’t heard, it’s not doing too hot right now) has led to many people losing their jobs, with no sign that the bloodletting of employment is going to abate anytime soon. When someone loses their job, especially if it’s for economic, and not performance-related reasons, they are understandably upset.
However, the vast majority of terminations are perfectly lawful. In virtually every state in the U.S., employment is “at-will,” meaning that the relationship is completely voluntary, and dependent on the mutual consent of both parties. This means that employees can quit their jobs at any time, and that employers can fire them at any time, for any reason, or for no reason at all.

There are exceptions, however. For example, under federal law, and the laws of almost every state, it is unlawful to fire or refuse to hire a person because of their race, color, religion, national origin, sex, or disability (if it can be reasonably accommodated). Also, if the employee is working under an employment contract, they can only be terminated pursuant to the terms of the agreement.

Whether your termination is ultimately found to be lawful or not, it is not a bad idea to speak with an attorney if you suspect that improper motives colored your employer’s decision. It’s better to talk with an attorney for a few minutes and have them tell you that you don’t have a case, then to sit on your rights, and let a valid claim for wrongful termination slip through your fingers.
Many people seem to recognize this, and are using LegalMatch to help.

CNN Falsely Attributes Racist Quote to Rush Limbaugh

Rush Limbaugh is in the news again and this time it’s not because he said something horribly insensitive, stupid, narrow-minded, and/or racist. It’s because someone else made up an insensitive, stupid, narrow-minded, and/or racist quote and attributed it to him.

Specifically, that someone was CNN’s Rick Sanchez, who claimed on air that Limbaugh said:
“I mean, let’s face it, we didn’t have slavery in this country for over 100 years because it was a bad thing. Quite the opposite: slavery built the South. I’m not saying we should bring it back; I’m just saying it had its merits. For one thing, the streets were safer after dark.”

Ouch. Harsh words, whether Limbaugh said it or not. Check out the video here (the bogus Limbaugh quote comes up about 1 minute and 14 seconds in).
Limbaugh was understandably steamed at the fraudulent attribution. No one wants to be called a racist, unless of course they actually are one, then they’re probably okay with it.
So now the inevitable question being asked by political pundits around the country, “Will Rush Limbaugh sue for slander?”

The answer (in my opinion anyway): probably not. Rush will probably just want some sort of apology from Sanchez and CNN, which he already received via Twitter, though he’d probably would want more of a formal one. If anything, he’ll just use it to further push his far-right republican conservative agenda. “More evidence of liberal bias, using me as a target to demonize…blah blah,” is probably how it will go down.

Though if he did sue, he probably wouldn’t have too tough of a time convincing a jury to award him money. Since he’s (arguably) a celebrity, he’d be considered a public figure and would have to satisfy the higher actual malice standard set out in The New York Times Co. v. Sullivan in order to prevail on a defamation lawsuit against CNN and Sanchez. Basically he’d have to prove that the CNN and/or Sanchez knowingly or recklessly made false defamatory statements about him. And in light of the fact that the CNN Twitter post admitted to this, it would at least appear that Rush has a good case. Though CNN could probably throw up some defense by publicly admitting and correcting their mistake, in my opinion it looks like Limbaugh would have a strong case.

Celebrities have it tougher when it comes to proving libel and defamation – it’s one of the few times where all us little people have an edge. All we have to do, essentially, is prove the false statement damaged our reputation. Though it may seem like defamation wouldn’t be a huge problem for non-public figures, LegalMatch does receive its fair share of defamation lawsuits. So don’t be afraid to press your rights. Unless you’re Rush Limbaugh, in which case you should probably reevaluate your life and try to figure out why people would so naturally believe you’d make such an outlandish racist statement.

Frivolous Lawsuits Are a Bad Idea: Birther Edition

If you’ve been watching cable news, you’re probably aware of the “Birther” movement – a loose coalition of individuals and organizations promoting the idea that Barack Obama is, for one reason or another, not constitutionally eligible to serve as President.

They make a variety of factual and legal arguments to support their conspiracy theories. The most common “factual” (a term I use loosely) argument they make is that Obama was not actually born in Hawaii, as is widely accepted. Instead, they claim, he was born in a foreign country (usually Kenya). Of course, they ignore that a Certification of Live Birth has been released, and confirmed to be accurate by the relevant officials in Hawaii.

Others concede that he was born in Hawaii, and rely on dubious legal arguments to support their claims. Some claim (usually without citing any supporting authority) that, in order to be a “natural born citizen” under the meaning of the U.S. Constitution, both parents must also be citizens of the United States. To be fair, the Supreme Court has never firmly ruled on what it means to be a “natural born citizen” under the meaning of the Constitution. So, the birthers have simply settled on their own definition, to the exclusion of all other possible definitions.

To support this point, they often rely on the writings of a Swiss political philosopher named Emerich de Vattel, author of the 1758 book “The Law of Nations.” This tome was apparently quite influential in the early development of international law, and it advocates the idea that, for a person to be a “true” citizen of a nation, both of his or her parents must also be citizens.

There’s just one problem: no evidence suggests that this work particularly influenced the framers of the U.S. Constitution when they were drafting that document. Even if it did, a Swiss book on political philosophy is not binding legal precedent in the United States.
None of this has stopped a dentist/lawyer named Orly Taitz from filing a lawsuit challenging President Obama’s eligibility to serve.

The result? The case was dismissed almost immediately. However, Ms. Taitz continued to file motions, and, after repeated warnings from the judge, was slapped with a $20,000 fine for misconduct, noting that she made no coherent legal arguments, and that her briefs and motions read more like political manifestos than court documents.

It should be noted that one of the best things about this country is the fact that you can say almost anything about anyone, especially elected officials, with relatively few legal ramifications.

However, that does not mean that you are guaranteed a platform to air your views, or that you get to use the courts to air whatever crazy idea happens to pop into your head. If that were the case, I’d be in court right now, arguing the merits of hamburger earmuffs.

In the end, we should all remember that the courts are a place to settle genuine legal disputes, and the non-issue of Mr. Obama’s citizenship is not one of them. Ms. Taitz has every right to express her political views in any number of ways. She could buy space on a billboard, she could run spots on the radio, or she could simply make like this guy.

The Necessity of Disrupting the Government to Save the Environment

As the end of October nears, children everywhere are wetting their pants in anticipation for the one time of year where wearing a Spider-man costume and asking for candy won’t land you in jail. Ahhh Halloween, how we love thee. It’s everyone’s favorite holiday, unless its hot sister Christmas is around, in which case take a message and tell it we’re washing our hair. Halloween is great. It’s a time for pumpkin-carving, trick-or-treating (as long as you don’t live in New Orleans), and of course, pranks.
Sometimes a well-laid prank can be even better than all that candy. Who doesn’t love leaving a flaming bag of dog poop in front of your cranky neighbor doorstep or covering said neighbor’s house in toilet paper? Not to mention the all-time classic, “bidding on a federal auction for oil and gas leases when you don’t have the money or intention to follow through on it.”
Don’t remember that one? It was all the rage when I was still in elementary school. I remember how my friends and I would dress up in a suit and tie, go down to the old Bureau of Land Management, or BLM for all you youngins, and place a phony bid posing as representatives for a kooky billionaire. Still doesn’t ring a bell, huh? Oh well, I guess I’m just getting too old to keep up with all these new fangled pranks…
But at least there’s one person who is keeping it alive. But Tim DeChristopher is doing it for an entirely different reason. Making a stand for the environment?? Psshtshaw… Whatever happened to just messing with people because it’s fun?
Seriously though, this is a very serious offense. DeChristopher is being charged with two felony counts, carrying up to five years in prison plus fines up to $750,000. The reason he did it was to cause disruption in protesting what he believes are governmental acts that are contributing to the rise of global warming.
But whether you believe in DeChristopher’s cause or not, you’ve gotta admire the legal defense he’s planning to use: a necessity defense. It’s basically a choice of evil defense, where a person is forced to choose between breaking the law and preventing some evil/harm, or letting that evil/harm happen. The article does a good job of summarizing DeChristopher’s chances of succeeding with this defense. Though I think they missed one important aspect: standing.
Usually to employ such a necessity defense, especially against the federal government, a person would have to show that he or she was actually harmed by the actions of the government. No actual harm usually equals no defense. I say usually because like every good law school will teach a first-year student, it depends.
I suppose DeChristopher could make some argument that the harm to the environment hurts the planet which in turn harms his life expectancy by increasing the chances of natural disaster or depleting the ozone layer which would lead to increased exposure to harmful UV rays. But looking at most case precedent, these types of arguments are considered too nebulous and broad to ever succeed.
Good for him for trying though. The number of lawsuits received by LegalMatch regarding environmental issues, land-use, and toxic torts has increased by approximately 20 percent from last quarter, so it seems like they’re all the rage now. So maybe Lady Luck will smile in DeChristopher’s favor, though if you ask me, she’s probably terminally ill from skin cancer…