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…

Public Option Health Care Reform Voted Down By Democratic Congress… Anyone Else See The Problem With That Headline?

With the democratic vote down of the public option of President Obama’s health care plan, the tired, poor, and huddled masses yearning to breathe free are understandably upset. Essentially, free public health care for those who need it most sounds like a no-brainer, right? Apparently not. It’s fine, I guess. I mean, who cares about the health of poor people? Those sub-humans have been dragging our economy down for, too, long. Always complaining about how hungry and sick they are. Such a group of whiners…

Was I laying the sarcasm on a little too strong again? Sorry, bad habit of mine. *sigh* The rich not only seem to be getting richer, but they also seem to be able to dictate how this country runs…

Anyway, I guess it’s back to the grind for all us working-class schlubs (and humble bloggers) since we don’t have the luxury of extended vacations and daddy’s money to preserve our physical and mental health.

That’s no joke either. The working class really does need to keep on working in order to stay above that proverbial poverty line. Even under an employee co-pay system, the average cost of health insurance for a family of 4 in America is $13,000. $13,000 is a lot of money, but considering this amount is over a third of what the average person makes in a year and the fact that food, living, and incidental costs just keep going up, you’ll start to get a better picture if how important that chunk of income in. Not to mention how important and vital a publically funded health care option really is to the vast majority of citizens in America. Oh, and by the way, don’t forget that the average cost of raising one; ONE child to adulthood (which is 18 years old, just in case any of you alcoholics out there think it’s 21) ranges between $124,000 to over $250,000.

Another interesting note is that single parents with incomes over $39,000 actually spend more on their kids than two-parent households. Guess missing a parent makes you more likely to throw money at your kid’s problems. Wish my parents did that with me…

Having free, or at the very least, affordable health care for people and their families in light of these statistics emphasizes how vital the public option really was and is. People will always fight over money simply because there never seems to be enough of it to go around, whether that money is taken from them through taxes or services that were once free, but no longer given as such. It’s no surprise then why according to the latest statistics from LegalMatch, over a third of all litigation raised against employers is regarding coverage of employee benefits. In other words, health insurance.

It’s a brain-teaser how this new democratic congress voted down such an important reform. I mean, the majority of citizens seemed to be for it. And last time I checked, public official were supposed to be elected in order to represent the people’s interests. I guess we’ll never know why thing turned out like they did. But I wonder if someone might have some clues that could point us toward this anomalous outcome.

@defendant – plz to cease n desist kthxbai

Alright, I’ll stop now. If you haven’t already closed your browser in disgust (and I don’t blame you if you have), you may be wondering what this is about. According to the ABA Journal, the highest court in the UK has allowed an anonymous blogger to be notified of an injunction through a Twitter message.


The blogger in question was impersonating a well-known English lawyer, Donal Blaney, who also happens to be a frequent conservative commentator. In his blog, the anonymous blogger apparently held himself out to be Blaney, and wrote articles under his name, promulgating caricatured political positions.


Because the identity of the anonymous blogger could not be readily ascertained, and Twitter was the easiest way to contact him, the court granted Blaney’s request to serve the injunction via Twitter. The Twitter message sent to the blogger contains a link to a copy of the injunction, and orders him to immediately cease impersonating Blaney, and to reveal his identity.

This follows on the heels of a ruling by an Australian Court, a defendant was served with notice of a default judgment through Facebook.

Apparently, courts in Australia are well known for their tech savvy, already allowing service of process via email and text messages, so such a move is to be expected. The question, then, is when should we expect such forward-thinking actions from American courts? If I had to guess, I’d say we have a while to wait, considering that some of them haven’t yet mastered advanced staple technology.


In all seriousness, this does raise some interesting questions about how service of legal documents should be handled in the digital age. The courts of most U.S. states, and the federal government, call for service to be delivered personally, in a hard copy. This is certainly the preferable method, as it all but eliminates any uncertainty as to whether or not service was actually received. However, it’s not always possible, for a variety of reasons. In such cases, “substituted service” – leaving the documents with another member of the person’s household, or at their place of business, is acceptable, as is service by mail.
Really, though, given the fact that most people in the developed world use email, and many also use social networking sites, wouldn’t allowing service by electronic means make sense, at least if other methods of service fail? After all, you can now check your email on almost any device that has a screen, and most people check their email on a daily basis. It would be pretty hard for someone to claim with a straight face that they haven’t received service, if they could receive it via email.


Of course this raises issues, as well. Once it becomes accepted that you can receive notice of a lawsuit via email, it won’t be long before the scammers realize that they can separate fools from their money by emailing them fake summons, and telling them that this pesky lawsuit can go away for a reasonable fee.

So, there are a few kinks to work out of the system, but in cases such as this, when the defendant is clearly a real person, with ready means of contact, but cannot be identified for whatever reason, it seems that justice could be served much more efficiently if this method of service were allowed.

Child Custody Battles In My Own Backyard

In my opinion (IMO, to you all people who can’t pry yourself away from the interwebz) a person goes through a number of stages in their life: childhood, adolescence, young adult, middle-aged, then old dude or dudette. That’s generally how most people see life, too. But within these stages, there are a bunch of sub-stages that occur, most interestingly between young adult to middle-aged. I’m in an odd/interesting/sad stage right now. I’m right around the age where everyone is starting to get married, but also I’m getting closer to the age where I’m starting to know people who are getting divorced. It’s weird – whatever happened to the stage where we’d all play around in the sandbox and make mudpies? Oh, childhood, why did we have to leave you?

Anyway… recently, I ran into an old friend, Joey, from high school and we ended up talking about his life since I last saw him. Joey was a pretty popular kid when we were in school together. Despite the fact that our school didn’t have very strong sports teams, Joey was a star-player on our school’s basketball team nonetheless, which is why he was also popular among a lot of the female students. And in our senior year, Joey hooked up with Deborah, a shy, yet nice girl from our school. Everyone thought they were the cutest couple and that they were headed to good successful places. So when Joey told me that he was getting divorced, I was shocked. Even more surprising was when he told me how things between he and Deborah had soured to the point where they were no longer talking and that he was locked in a bitter custody battle with her.

I was shocked, even more shocked than when I discovered the drying power of ShamWow!
Joey wanted to have primary custody of the children. He told me how other divorced guys he knew all either lost complete custody of their children or were limited only to visitations rights. Joey didn’t want to keep Deborah from seeing their children. In fact, he wanted her to be a very active part in their lives. But what he didn’t want was to become like all the other divorced dads he knew. He didn’t want to be limited to only visiting his children because he was worried that it’d make his children distant. He wanted to know what his options were.

Well, I didn’t know what to tell him since anyone in or heading toward a career in lawyering knows that the answer to every legal question is that “it all depends.” Laws can be ambiguous and outcomes vary all the time and are dependent on a number of things as facts can always be distinguished to appear different from other cases tried before it.

Generally, in California and most states, courts usually award custody to the primary caregiver, meaning the person who spends the most time with the child. Usually that translates to the person who doesn’t hold paid employment and raises the child, but when both parents work, like in Joey’s case, it comes down to fitness and a calculation of time spent with the child.
Joey isn’t alone in his predicament. A vast majority of family law cases received by LegalMatch are about child custody battles.

The best advice I could give to my friend was to seek the counsel of a qualified family law lawyer. Because regardless of the legal situation, case outcomes are not always predictable.

Supreme Court Considering Landmark 2nd Amendment Gun Case

Whatever your thoughts on gun control, news like this gets law geeks and wannabe scholars of constitutional law (such as me) pretty excited.

In short, the Supreme Court has granted certiorari (Fancy Lawyer Talk for “agreed to hear”) to a case which will, one way or another, fill a massive gap in our 2nd Amendment jurisprudence: whether or not the 2nd Amendment applies to states, as well as the federal government.
Last year, the Supreme Court, in District of Columbia v. Heller, ruled on the meaning and scope of the 2nd Amendment for the first time, holding that it protects an individual, rather than collective, right to possess firearms for private, lawful use, including self-defense. However, because a Washington, D.C. law was being challenged, and D.C. is technically governed exclusively by the federal government, the Court only ruled on the 2nd Amendment as it applied against federal law. This makes sense, because the Court could not have incorporated any 2nd Amendment rights against the states without first ruling on the meaning and scope of the rights that it provides.

In Heller, the court essentially held that the 2nd Amendment protects the right of individuals to keep handguns in their homes, for self-defense and other lawful uses. More specifically, Justice Scalia’s majority opinion held that individuals have a right to possess firearms that are “in common use at the time” for lawful purposes, but left open a great deal of wiggle-room for the government to put restrictions on the possession and use of firearms, such as banning guns at sensitive facilities, schools, or banning possession of guns by minors, the mentally ill, or convicted felons.

The upcoming case, known as McDonald v. Chicago, challenges Chicago’s handgun ban, and the ban’s opponents appear to argue that the Heller decision should be applied against state governments, as well.

Originally, the Bill of Rights (the first 10 Amendments to the Constitution, which protect our rights of free speech, freedom of religion, the right to trial by jury, etc.) only applied against the federal government. However, after the passage of the 14th Amendment, beginning in earnest in the early 20th century, the Supreme Court began to apply those protections against state governments as well (a process known as “incorporation”), relying on the 14th Amendment’s Due Process clause as its rationale for doing so.

Considering that the legal meaning of the 2nd Amendment’s “right to bear arms” was settled a little more than a year ago, after around 150 years of scholarly debate, the pace at which the Court is moving in filling in the centuries-old gaps in the law is quite impressive. Perhaps they feel as if they have some catching up to do? Or, as a more cynical person might argue, perhaps the conservative wing of the Court is simply granting cert to these cases so they can decide them before one of them retires and is replaced by an Obama appointee.

Whatever the result of this case, it is certainly going to ignite a storm of scholarly debate over the meaning of the 2nd Amendment, and its relevance in modern times.

According to recent LegalMatch case data, the majority of prospective clients who sought an attorney for a criminal case related to gun possession had no prior arrests. While it is impossible to know the exact circumstances of each case from this data, it is possible that many of the crimes which these people are charged with would cease to be illegal if the 2nd Amendment is incorporated. As for those who have prior convictions, they’re most likely out of luck, given the leeway that the Court has already indicated it is willing to give the federal government, when it comes to keeping guns out of the hands of convicted felons.

Justice is Blind, But Apparently Not Immune to Jagged Staples

Remember in elementary school how your teacher would constantly harp on you about penmanship? No? Apparently, once again, I’m the odd man out as my first-grade teacher said my handwriting was comparable to Jeffrey Dahmer’s. Well Mrs. Donaldson, at least I haven’t wasted my life for the past 20 years teaching a bunch of snot-nosed kids… Anyway the point I was trying to make is that all that emphasis your parents, teachers, and adults in general have been putting on you since you were young about making things neat had a purpose after all.

It seems that our justice system is being run by a bunch of Catholic school nuns hell-bent on tidiness because court cases are being thrown out for completely arbitrary reasons. How arbitrary you ask? How about poorly-stapled-document arbitrary?

Yes, that’s right people, if you’re planning on filing a claim in the New York Supreme Court, you better make sure your papers are aligned properly and the sharp points on your staples are filed down because the nuns running that court are also made out of sugar. According to Justice Charles J. Markey, “[T]he poor stapling of the papers was so negligent as to inflict, and did inflict repeatedly, physical injury to the court personnel handling them.” That must’ve been one incredibly bad staple job…

I’d hate to be the attorney on that one, what an uncomfortable phone call you’d have to make to the client.

“My motion was denied? But how, I thought my case had a sound legal basis?? What, a staple??”

Now to be fair, that staple from hell did draw blood, twice. And at the very least the court gave a reason for denying the motion, as unjustified as it may be, which is much better than what some courts give those trying to shove their cases before an almighty judge. The court also claims that the reason for the denial stemmed from the lawyer forgetting to include his signature as well as missing affidavits from the plaintiff. Way to recover…

Seriously though, a staple? Reading this story, one can’t help but think of the first rule of the Federal Rules of Civil Procedure: “all civil actions and proceedings in the United States district courts…should be construed and administered to secure the just…determination of every action and proceeding.” Which any smart-ass first-year law student can tell you basically means that the court is supposed to look at all claims so as to do justice for all those involved. Justice.

Denying a plaintiff’s motion because the staple they used to keep their documents from flying apart doesn’t sound very fair to me (and I hope it doesn’t to you either). Whatever happened to, oh I don’t know, judging claims on their merits? Call me crazy and old-fashioned, but I’m just one of the nutty guys who still believe that courts were created to judge everything fairly. They should really start tearing down those blind justice statutes all over the place.

So what’s the moral of this story? Evidently, it’s that when you hire a lawyer make sure you insist that they include their kindergarten teacher on their list of references.

Uninsured Car Accidents Can Cost You Big Time

Accidents are a part of life, right? That’s why they have erasers on the ends of pencils. Because when you make a mistake you learn from it. And even if you don’t, in today’s modern society there are all sorts of fail-safes to ensure that even when you screw up, there will always be someone or some way to make it all right again. Which is why if someone rams into you with their car, you have nothing to worry about. Other than the increased insurance premium that you’ll likely have to pay, the person responsible for the accident will pay for their mistake, or at the very least their insurance carrier will. So everything works out in the end, cake and ice cream for all.

Not quite. According to the latest statistics from LegalMatch, of the cases received relating to automobile accident claims, nearly a quarter of them are against defendants who aren’t insured. Weird, right? Seeing as how it’s illegal (in most states) to drive uninsured. But is that really a surprise? I mean, when was the last time that making something illegal was able to deter a hundred percent of people from committing the prohibited act? It’s like training a cat to use the litter box, at some point their instincts will kick in and they’ll want to use something more natural.

LegalMatch’s statistics fall in line with what’s happening on a national scale. In 2007, it was estimated that about 23 percent of drivers in America remained uninsured. It’s a pretty frightening statistic considering the average costs associated with a car accident, let alone the cost to simply own a car. With medical bills on the rise, one bad accident can easily wipe you out if you have no one (or way) to cover.

And don’t think that those of you who are uninsured can get off free either. Because you’re just as susceptible to everything I mentioned earlier with one exception. You also get the pleasure of possibly being racked up on criminal charges. Nice, huh?

Still, like I said earlier, criminal penalty along has never been a perfect method to deter bad apples. So what is there to do if you’re on the receiving end of a rear-ender from a dead-beat driver?

Well, you better hope your insurance is up to date and that you have good enough coverage to get you through the nightmare that’ll ensued. You might also want to consider going after the person responsible for your injury by filing a lawsuit. But as we all know, no one likes to file suit against another person if they can’t get money out of it. It’s a fruitless endeavor right? Again, not necessarily. If someone is broke, they’re broke. But at the very least you’ll be able to recoup some of your losses. It may not seem like much, but when you’re in a really bad accident, every little bit counts. Plus, you also get the satisfaction of having your claim and plight justified before the eyes of the law.

I know, I know, money is still better…

Few people object to the existence of government agencies charged with protecting children from abuse and neglect, nor do they oppose giving these agencies the power to remove children from abusive environments, at least as a last resort.

However, this post from the Wall Street Journal Law Blog shows what can happen when the legitimate mission of state Child Protective Services agencies can become sidetracked by puritanical hysteria. According to the post, parents took innocent pictures of their children in the bathtub. When they went to a local Wal-Mart to have the pictures printed, an employee decided that these pictures constituted child pornography, and turned them over to the police.

The parents were arrested, and their daughters were taken away from them for over a year. During that time, they were required to register as sex offenders. The couple spent $75,000 in legal fees, and the mother was suspended from her job. According to recent interviews with the parents, it took a long time before they were comfortable taking any pictures of their children again, regardless of the setting. In the end, they were cleared of all wrongdoing, the charges were dropped, and their children were returned…after a year living away from their parents.

All sane people recognize that sexual exploitation of children is one of the most evil and disgusting things that human beings are capable of. I don’t know exactly how pervasive the problem is, but one instance of it is one too many. I also don’t know what has happened to our society that people would consider innocent pictures of children, the type which the vast majority of parents take, could be construed as child pornography by any person capable of obtaining employment (even if it is a job at Wal-Mart’s photo department) as child pornography.
Furthermore, this case used up limited resources that could have been used to investigate and prosecute actual instances of child sexual abuse. An argument could be made that, because of the actions of this employee, and the decision of the police and CPS to pursue this frivolous investigation for so long, real cases of abuse went unpunished, and children suffered as a result.

According to recent LegalMatch statistics from the last 12 months, reports of child abuse continue to be common. In most of the cases, the alleged abuser was a parent or someone else who had a confidential relationship with the child, such as a teacher or coach. This demonstrates the need for a robust system that protects children from abuse, and that any frivolous allegations should be dismissed, after being sufficiently investigated, lest real cases of child abuse go unpunished.

Why You Should Always Check Out Your Lawyers Credentials: A Moral Tale

Why You Should Always Check Out Your Lawyers Credentials: A Moral Tale

Being a lawyer is tough. If you work at a big firm, you have partners breathing down your neck to bill more hours, a seemingly endless pile of mind-numbing documents to review, and a constant sinking feeling that you may be axed on any given day. Working as a sole practitioner isn’t much better either. You have to constantly find clients or risk going under, do all your legal research on your own, and deal with something everyone hates: getting your clients to pay for services rendered.

Well, one lawyer has found a way around all of this. I can’t for the life of me understand how no one figured out before. Robert P. Mangieri, 68, discovered a way to outsmart all us dolts wasting our time with education and training. He found that you can just practice law without a license. It’s so easy and obvious, how did years of attorneys not figure it out sooner? No need to waste all that money and time on law school or endure countless hours trying to understand how that freakin’ rule against perpetuities doctrine works, just lie and say you did all that crap. Then all you have to do is open shop, maybe hang up some fake diplomas, and start raking in the money from hapless clients who are too poor to properly check out your credentials. And the best part is that you don’t have to do any legal research since you’re already lying about your competency or that you’re even legally able to practice law.

I can’t tell guys – was I laying the sarcasm down a little too thick in that last paragraph, or not enough?

As I mentioned in a previous post lawyers in America already have a bad enough reputation without yahoos like Mangieri screwing it up even more for us. If he had attended law school, he would have learned that lawyers are subject to an incredible number of rules on ethical lawyering, which cover everything from proper notice to guidelines on fees. Though chances are as a fake lawyer, he probably already knew some of these and chose to ignore them.
Do any of Mangieri’s former clients have a legal recourse against him? You better believe they do. Not only is the would-be lawyer being subjected to criminal punishments including grand larceny, impersonating an attorney, and conspiracy to defraud (all of which carry an incredibly light sentence of 4 years – way to deter people federal government!), but he’ll also be open-season to a plethora of tort claims. The most obvious being fraud and maybe malpractice, but since he’s not officially a lawyer that latter one might not be so obvious. Though as the saying goes, you can’t get blood from a turnip. Despite Mangieri duping people into paying him money for services he wasn’t qualified to render, most of his clients weren’t very wealth themselves so Mangieri himself might not be worth so much.

But don’t let Mangieri’s tale fool you into thinking all lawyers are shysters. Though you should always be sure of your lawyers credentials, according to the latest LegalMatch statistics attorney malpractice cases are among the lowest received. So don’t be scared to hire a lawyer, just make sure they are actually lawyers first…

Loser-in-Love Drops Fraud Class Action Lawsuit

For anyone who likes weird news like I do, you’ll be tickled to know that Sean McGinn, the loser at love who made a lawsuit out of his unfortunate nickname (which I just gave him), has dropped his lawsuit against Match.com. Why did he drop it? Because he’s a sensitive boy and can’t take all the meanie-weenies leaving ridiculing (and hilarious) comments about him on the internet.
For any of you unfamiliar with the site, Match.com is a dating website that purports to get over 86 million searches a month from its members looking for a love connection. McGinn originally claimed in his class action suit that the website defrauded him because it didn’t tell him that most of its members have either cancelled their membership or have never become full members. McGinn claims this deceptive practice led to many of his emails going unanswered which caused him emotional distress (and I’m sure many sleepless night pulling petals from roses).

Now to be fair to the crybaby…er… I mean McGinn, yeah, definitely meant McGinn, this was a class action suit with 15 other people joining McGinn on his crusade against loneliness (which also means there were 15 other equally sad and pathetic people). Okay, I’ll stop now.
But this story got me thinking about whether McGinn actually had a leg to stand on. I mean to most people this sounds like a funny, albeit frivolous lawsuit. But he did state a claim that he was able to plead validly enough to be accepted to be heard before the court. Though that’s still not saying much since we all know how easy it is in America to sue anyone for literally anything.
So this case would’ve come down to the evidence he had against Match.com and whether it showed his claim had enough of a legal basis to warrant awarding him his request for $5 million. From not knowing anything else about the case other than what’s been released in the news, I’d say the answer is no.

Why? Well, as much as we would all love to sue every company that advertises how great their product is, that’s just not possible. Anyone familiar with basic contract law knows that the mere puffery (basically an advertising opinion designed to get people interest in a product, e.g. a car company that says their cars are the best) is not a valid claim for a lawsuit. Though McGinn was suing on what appears to be a tort claim and not a breach of contract, I think the court would probably side with my assessment since allowing him to prevail would have open the floodgates to all kinds of other crazy lawsuits, especially class actions since they can be litigated for years on end. Recent LegalMatch statistics show that most class actions involve more important matters, such as defective products and exposure to toxic substances, and not being lovelorn.
Courts want people to utilize the legal system to correct wrongs, but they don’t want to clog it with a lot of pointless claims; which sucks because I really thought I had a good false advertising lawsuit against these people. I’m still waiting for my money back…

Of Copyrights and the Economy

Yesterday during one of my many, many sleepless nights, I decided to boot up my computer to research some case intake trends for LegalMatch. Why you ask? Well aside from the fact that I love this company and its 25-cent soda machine, which by the way may also be a reason for my insomnia, I found it to be the best way to knock me unconscious, a close second only to valium, of course. Hahaha, I kid, I kid, I love looking up LegalMatch statistics and pleasing the mighty gods who sign my paycheck. As long as I don’t have to sacrifice goats, I’m fine with whatever you guys want me to do…

Seriously though, a lot of times when I’m writing these blogs, I don’t really have a direction. I kind of just go online or through LegalMatch’s system until something strikes me. As I was going through it I started to notice an odd trend. The number of copyright dispute cases we’ve been receiving has increased a lot over the past couple of years. After grabbing my calculator, I found out the jump was pretty significant, a little over 50 percent since 2008.

Here at LegalMatch, we get a lot of cases concerning many different areas of law. As is customary in the legal field, there really isn’t any sort of rhyme or reason to the frequency of the types of cases received. Unlike the retail industry, legal issue requiring litigation can spring up at anytime. Also some fields of law are by nature busier than others. For example, personal injury cases are always plentiful because injuries happen all the time – hence all the lawyer TV ads you see during daytime television.

But copyright cases have always been pretty stable, neither dropping off or spiking significantly. Which was why it was so weird when I saw noticed were getting a lot of these types of disputes all of a sudden. It didn’t make much sense to me. The RIAA has been around for years now, along with numerous other intellectual property protection groups, so why the spike now?

Then it hit me. It was probably due to the economy. With so many people out of work nowadays, it’s not too big of a stretch to imagine that people probably have a lot more time on their hands. Time to pursue other independent projects, time to be creative and pursue that dream of being a travelling vagabond artist or in lieu of that, a writer, musician, or some inventor of the Magic Bullet!! That thing is awesome until you realize it’s smaller than a blender and instead of cleaning one big container, you have to clean 6 small ones.

Anyway, getting back to my point, the vast majority of copyright cases LegalMatch handles involves a plaintiff trying to either enforce a copyright or get a copyright. In other words, it’s people trying to protect their work against someone they believe infringed on their work or are trying to ensure that their work is protected in the future.

So is there a lesson here? Well, one is if you have a job, hold on to it like your life depended on it because it probably does and if you lose it you’ll be stuck in a litigation nightmare where you’ll be trying to protect your claim on some song you wrote in the 80s. Another is having your own anesthesiologist might sound like a cool idea, but it’s really not.