I DON'T SEE WHY IT SHOULD

Law.com, our host, observes that a Deaprtment of Justice attorney blog's demise may chill other federal lawyers' online comments.

I don't see how. Obviously, I’m a big fan of blogs. Properly done, they serve a primary goal of the legal profession: educating the public about the law.  Some obviously do that better than others. Most legal blogs implicitly or explicitly have education as their goal.

Others are more frivolous, for lack of a better word.  There is a place for all

I do believe that lawyers' blogs are governed by the same defamation rules as other blogs and also by any rules of professional responsibility that may apply.  I also hold as self evident that lawyer’s blogs should be uphold the best of the profession. Dignified? Perhaps.  Humorourless?  No, I can easily point to several humorous blogs that uphold the best of our profession. Exhibit A.

I’m not so sure about a blog that anoints "judicial hotties" or that has the flavor of celebrity sightings. Your views may differ. I do think employers have the authority, as a general rule, to restrict their employees' online blogging that is publicly connectable to the employer.  If Underneath Their Robes was publicly written by an identified Justice Department lawyer, I see no problem with the DOJ prohibiting further activity as a condition of continued employment.

But an anonymous blogger seems to present no such hazard and the blogger admittedly outed himself.  No, I don’t lose sleep over this issue.

Wonkette has more observations and link to the now "locked" site.

Posted by Joseph R. McFaul on Monday, November 21, 2005 at 00:00 Comments Closed

ACCIDENTS WILL HAPPEN

Posted by Joseph R. McFaul on Thursday, November 17, 2005 at 00:00 Comments Closed

SECRET DOCKETS IN US COURTS

Law.Com carries a frightening story about secret dockets in the U.S. District Courts in Florida.  Although the Eleventh Circuit chastised the District Courts for the practice, it appears the Eleventh Circuit had its own secret docket.

Especially disturbing is that some of these cases involve habeas corpus proceedings.  Public knowledge of cases like these involving detention of foreign nationals is central to our understanding of civil rights in this country.  Public review of judicial decisions is the last line of defense against injustice.  Sometimes it takes decades to recognize the injustice that was done.  Imagine if this opinion was on a secret docket.  Perhaps the greatest triumph of American justice over anarchy and oppression depended on a public trial.

The Volokh Conspiracy has more.

The disgraceful practice should be stopped.

Immediately.

Posted by Joseph R. McFaul on Wednesday, November 16, 2005 at 00:00 Comments Closed

CONVICTION OVERTURNED BASED ON INACCURATE EXPERT TESTIMONY

The story of Andrea Yates is sad. It is hard to comprehend a mother who drowns her five children in the bathtub. She was later convicted of murder in spite of her insanity defense.  The Texas appellate courts have now reversed the conviction becasue the state's expert inaccurately testifed that Yates had patterened the killings after a non-existent TV episode on post-partum depression.

At her trial, the issue was whether she was legally insane or criminally psychopathic.

Of course, the state called a psychiatrist as an expert witness.  This expert had al lot of experience testifying in high profile cases on defendants’ insanity.  He testified in the John Hinckley case, for example.  At Yates’ trial, in line with all of his previous opinions, he testified that Yates was legally sane.  In fact, he testified she was a fan of the TV show "law and Order" and that a month before she killed her children, Law and Order had an episode about a mother suffering from postpartum depression who drowned her kid in a bathtub.  The state, armed with the expert’s opinion and factual testimony, suggested that Yates patterned her crime after the TV episode to engineer her own insanity defense.

Unfortunately, the Law and order episode never existed.  This situation highlights the seriousness of handling experts correctly and why expert testimony should be carefully controlled by the judge.

Dealing with experts is made more difficult in criminal cases where pre-trial expert discovery is limited.  Generally, there are no depositions or required detailed expert reports in criminal cases.  The defense was limited to in-court cross examination, where the expert testified he specifically remembered the Law and Order episode because he acted as a consultant on that episode.  The truth was he had consulted on other Law and Order episodes, but there was no post-partum drowning episode.  This factual error undoubtedly played a role in the jury's verdict and was the basis for the reversal in the lower courts. 

The courts did the right thing.  That’s what courts of appeal are for.  Nevertheless, the whole case demonstrates that expert testimony must be handled carefully to prevent injustice.

Posted by Joseph R. McFaul on Tuesday, November 15, 2005 at 00:00 Comments Closed

THE TRAIN COMES FULL CIRCLE?

Two centuries ago, the railroad robber barons argued that injured railroad workers had assumed the risk of having their arms crushed when injured while attempting to manually couple rail cars. Unfortunately, this was a common event early in the age of rail. Automatic coupling devices dramatically reduced the injury rate by 1893, and assumption of risk fell somewhat out of favor.

Assumption of risk later became subsumed by comparative negligence, serving only to reduce an injured plaintiff’s recovery by the amount of his negligence, but not acting as a complete bar to recovery.

It made a comeback in California in Knight v. Jewett.

In that case, a participant in a "touch" football game that inadvertently (but predictably) turned into "tackle" was injured.  The California Supreme Court held she(!) could not recover because she had assumed the risk of other players’ negligence inherent in certain sports.  The court didn’t know what to call this sports assumption of risk but later decisions settled on "primary assumption of risk" as the name for the new version.

Under this doctrine, a plaintiff was completely barred from recovery for injuries suffered in sports related activities, if the injuries were inherent in the risk of the sport.  For example, injured barefoot backwards waterskiers were denied recovery. Nevertheless, stupidity was not necessarily an element of primary assumption of risk.  Most sporting injuries fell into this doctrine, including those arising from such sports as baseball, skiing and rock climbing.

In applying the doctrine of primary assumption of risk, courts find that a defendant that caused injury to the plaintiff owed no duty.  Absent duty, an essential element of negligence was missing.  Furthermore, "duty" determinations were always questions of law, so most cases were resolved on motions for summary judgment.

The doctrine makes sense applied to the sporting context.  Sports are voluntary and the risks and thrills are part of the appeal. It’s not like the rail yard workers who had to have a job and who really had little choice in the matter of safety equipment.  There is a reasonably discernable bright line between voluntary participation in recreational sports on one hand and in encountering unavoidable workplace hazards, on the other.

Until recently.

In Saville v. Sierra College, a student was injured in a community college peace officer training class while practicing "arrest and control techniques.

Completion of this class is a requirement for certain minimum Police officer qualifications. This doesn’t sound recreational, it sounds occupational.  The court didn't make that distinction and held that primary assumption of the risk applied to bar plaintiff’s recovery.  The court found that a class advertised as throwing people to the ground was a physical activity in which the participants assumed the risk.  This activty was close to judo and other self defense sports. The doctrine had already been applied to injured participants in these self-defense sports.

The court also held the student voluntarily registered for the class. I’m not so sure about the court’s reasoning here. This class or its equivalent is a requirement for being hired as a police officer. That’s pretty close to having to accept the risks that railroad workers were forced to accept two centuries ago. As the opinion itself notes, the doctrine has recently been expanded to include certain high risk occupations such as firefighters and veterinarians. In the employment context, the determination of "voluntary participation" is not as obvious as it is in the recreational context.

I see no reason why the doctrine cannot expand into other "high risk" occupations as well. I think the primary assumption of risk doctrine should be limited to the sports situation where the line between voluntary and involuntary activities is much clearer. Your thoughts?

Posted by Joseph R. McFaul on Friday, November 11, 2005 at 00:00 Comments Closed

A Flat World

The Common Scold tells a tale of computer tech support, including calls to India. Almost a standing joke nowadays. She correctly refers readers to Thomas Friedman’s "The World is Flat," which discusses the outsourcing phenomenon in a way that is both optimistic and chilling.  Pointing out the vast highly educated populations of China and India willing to do every thing from computer tech support to U.S. tax returns to accounting can be daunting.

I would be very concerned if I was in an industry that essentially produces a fungible good. Fortunately, law is not susceptible to outsourcing.

Oops.

Not so fast.

The biggest hurdles to outsourcing are expected to be bar membership and confidentiality.

I think the biggest hurdle is internet pipeline. As the ability to work seamlessly online is expanded, any intelligent person in any location in the world can manage documents or research the law.

Once that happens, then law firms will be as "flat" in the Freidman sense, as any other industry. Keep sharp and think creatively for ourselves and our clients. Friedman makes a good case that globalization is inevitable.

Update: Dilbert agrees with me.

Posted by Joseph R. McFaul on Wednesday, November 09, 2005 at 00:00 Comments Closed

TOO MUCH HOT AIR?

A court holds that a hot air balloon salesman’s "gripe site" complaining about his car insurer is free speech, not defamation.

Internet free speech issues are expanding faster than any hot air balloon. How much free speech should the internet tolerate?  Any individual can set up a website detailing a litany of real or imagined horrors suffered at the hands of a business.  Consumers employing effective search engines such as Google (nobody is immune) will easily turn up these "gripe sites" along with any company’s legitimate site.  Prior to the internet, a griper could only stand outside with a protest sign--generally a barely-noticed forlorn figure.

Now, a disgruntled consumer’s creative website can have much more impact against a corporate target.  Often the first search "hit" will be a gripe site that skewers the company’s products and employees. The potential effect on business can be devastating, especially to relatively small companies.

Corporations are often not taking such sites in good humor and have their own ways of fighting back.

Gripe sites also offer much more to any disgruntled customers. For example, weblogs and comments boxes allow a network of similarly dissatisfied customers to compare notes at a scale not possible in pre-internet days. Comparing notes can lead to class actions, or at least a ready pool of potential plaintiffs.

Since things on the internet aren’t always what they appear, I predict that there will soon be spoof gripe sites set up by (1) competitors or (2) lawyers looking for clients.

The internet is not free-wheeling, however. A spoof gripe website neatly qualifies as an unfair business practice, or even wire fraud, under a number of state and federal statutes.

Other reasons for incurring liability include confusion, extortion, or defamation.  It would be a mistake to assume that the internet is a license to defame or engage in unfair business competition.

Electronic Frontier Foundation has been a leader in personal rights on the internet and is a great starting resource.

Posted by Joseph R. McFaul on Thursday, November 03, 2005 at 00:00 Comments Closed

Man Bites Dog

Ski resort sues injured skier for breach of contract.

This appears novel but it is not too far fetched.  Ski resorts have very strong waivers of liability on their lift tickets, excusing them from liability under a variety of theories.  What happens when a wayward injured ski sues anyway?

A counter suit for breach of contract.

The ski resort’s damges appear to be limited to attorney’s fees and, according to the law.com article, it will drop its claim for attorney’s fees if the skier drops her suit.

Courts routinely enforce attorney’s fees clauses in a variety of situations, so it is very risky for a plaintiff to sue when an attorney’s fees clause is applicable.  The defendant may recover attorney's fees, often a nasty surprise for the plaintiff.

In California, ski resort waivers are routinely upheld.  Westlye v. Look Sports, Inc. is one of the earlier and most cited cases.  In Westlye, the Court of Appeal held that the release barred all claims against the ski shop which allegedly rented the defective equipment, except a strict liability claim.

Platzer v. Mammoth Mountain Ski Area, a 2003 case, is more explicit.  In Platzer, the court enforced a parent’s release on child’s ski lift ticket.  In that case, a mother enrolled her eight year old son in ski school, signing a release.  He was later injured attempting to get on the ski lift.  Relying on the release, the court granted summary judgment, a ruling sustained on appeal.  The language of the release was arguably broad enough to encompass attorneys’s fees, but the resort wisely exercised restraint.

If the release itself was not enough, the California doctrine of primary assumption of risk bars many lawsuits arising from recreational activity injuries, even in the absence of a written release.  Cases on this subject have been collected here by Steven Finz, who publishes a monthly summary of California Torts and Evidence law.  I highly recommend his monthly summaries, eligible for self-study CLE credit in California.

And before you take to the slopes... check your own equipment, ski under control, and read the fine print.

Posted by Joseph R. McFaul on Tuesday, October 25, 2005 at 00:00 Comments Closed