You burn it, you buy it.

The California Department of Forestry has been just a little busy this past year.  The news media presneted us with a steady stream of raging flames, fire trucks on the move, equipment being positioned about the state, and water dropping helicopters and swooping aerial tankers.

After checking out these images, you can easily imagine the overtime, fuel and equipment costs require to fight even a modest fire.  All of the photos above are takne not this past year but are from the 2003 Piru fire. 

Disclosure/proud brag:  My stepson is a CDF firefighter and fought the Piru fire.

All of that equipment doesn't come cheap.  The total cost for the fire efforts on that 64,000 acre fire was a whopping $3,871,695.00.  Imagine gettign abill for that amount.

The fire was caused by a spark from construction equipment operated by the local water district.  So, yes, they did get a bill for almost 4 million dollars.  The CDF has authority in common law and by statute to recover firefighting costs from responsible parties. 

The water district here raised an interesting defense.  Although CDF fought that fire over several days, the initial reports showed the fire 90% contained after the first day with about 1200 acres burned.  The fire was in the mop up stages only about 24 hours after the initial report on October 23, 2003.

Within a day, the situation had changed dramatically for the worse.  25,00 acres had now burned and the fire was now out of control, only 5% continued. What a difference a day makes.

The CDF reported rapidly increased winds fanned the few remaining flames causingthe fire to spread and expand rapidly after that.  The Water District claimed that CDF simply didn't finish the job and pulled its crews off before the fire was completely out.  The water district asserted that CDF was mostly responsible for the remaining 61,000 acres of fire and the last two weeks of the nearly four million dollars in costs.   Taken at face value, the water district has a pretty good argument that the CDF had the fire nearly out in two days and then let it get out of control with catastrophic results and correspondingly increased costs.  The water district argued it should not be responsible for the costs after day 2, and could therefore only be liable for a small factionof the 3.8 million dollar bill.

In short, can a defendant starting a fire claim that response agencies putting out that fire were contributorily negligent in the actual response?

"No," says the court of appeal. 

Response agencies are absolutely immune.  See Government Codes sections 850 through 850.8.

This is a good rule.  It is difficult and unfair to second guess accurately after the fact decisions literally made in the heat of the moment.  The fire responders often face unpredictable rapidly changing conditions with limited manpower, resources and finances.  Second guessing will discourage aggressive responses, and sometimes encourage no response at all.

Although the Water District cannot argue CDF was contributorily negligent, it can argue that public agencies are limited by law to recover only  "reasonable" expenses proximately caused by its own negligence.  The reasonableness and causation are both factual issues for a jury in most instances.  Here, the water district is not prevented from arguing that any costs incurred after October 26 were either unreasonable or not related to the original negligence.

Good luck....and don't play with matches.

Posted by Joseph R. McFaul on Friday, February 08, 2008 at 00:00 Comments Closed

Court of appeal refuses to order identity of anonymous internet poster.

In Krinsky v. Doe 6, the California court of appeal quashed a subpoena to Yahoo to identify an anonymous poster on stock investor internet message board operated by Yahoo.

Doe 6 (using a screen name) described Lisa Krinsky an officer of SFBC, a publicly traded company drug service company, in foul and obscene terms on several internet chatrooms, accusing her of fraud, incompetency and holding a fake medical degree (not a good thing for CEO of a medical services company).

She sued for defamation and attempted to obtain the identity of the hateful anonymous poster from Yahoo. The poster filed a motion to quash the subpoena for Yahoo's records identifying the anonymous poster.

The trial court denied the motion, but the court of appeal reversed.

The court found the internet chatrooms are known to host wild, freewheeling raucous and oftne heated debates. Language that may be defamatory in other circumstances could be considered mixed fact and opinions. Apparently, under the court's analysis, the more vulgar, vituperative and apparently irrational the language, the more likely it is to be treated as opinion, not subject to defamation laws.

The court downplayed a particular activity of these investor internet chatrooms. There are a lot of "pump and dump" scam artists hiding behind fake names either talking up or talking down individual stocks. The anonymous scammers hope to move relatively small stocks in one direction or another by making positive or negative claims to a concentrated market of investors interested in an individual company's stock. Internet chatrooms devoted to individual companies are an ideal environment for "pump and dump activity" that all too often include scurrilous and unverifiable attacks on corporate officers' morals and competency or the company's product quality.

The court of appeal determined the postings in general were too outrageous to be considered "pump and dump" stock manipulation and were free expressions protected by the First Amendment.

In concept, I like the result, but courts must also be sensitive to defamation, trade disparagement and fraud on the internet. Injured businesses and individuals deserve a remedy when they are unfairly harmed by internet scams.

Posted by Joseph R. McFaul on Wednesday, February 06, 2008 at 00:00 Comments Closed

Random webinar creates perfect storm surge, linguists to be thrown under the bus of bad prose surge. Sweet!

Winter is bitterly cold in Sault Ste Marie, Michigan.  That may be one reason why Lake Superior State University's  2008 list of overused words is so anticipated.  It's quiet this time of year in "the Soo."   As usual,  the list is a priceless display of this year's most abused clichés and inappropriately used words.  Earlier lists are fascinating snapshots of bad English of yesteryear.  Review them at your pleasure.

I await the next year's list with the usual excitement, but you don't have to wait until the year's end.  Lake Superior  State  accepts  nominations year round.  Feel free to nominate your pet peeve here.  Business and political euphemisms are always potential  winners.

My 2008 nomination will be "value chain."

Posted by Joseph R. McFaul on Friday, January 04, 2008 at 00:00 Comments Closed

Secret" Second Circuit opinion published on internet

           Our host, Law.com, has an important article by Howard Bashman, the author of the popular How Appealing blog.  Howard posts appellate decisions of general interest on his blog, and readers around the country check How Appealing to stay abreast of fast breaking legal developments.  Howard routinely posted the Second Circuit's opinion in the recently decided case of Higazy v. Templeton.  This opinion was significant because it is a "war on terror" case.  The war on terror has met with mixed reviews in the U.S. court system as several elements of the war on terror appear to conflict with common understanding of the Constitution.

           Mr. Higazy's case is a good example of the problems that arise.  Mr. Higazy, a citizen of Egypt, happened to be staying at a hotel near the World Trade Center in New Your City on September 11, 2001.  After the attacks on the World Trade Center, the hotel was evacuated and not all guests were able to take their personal belongings.  While the hotel was gathering guest personal belongings, a radio transceiver tuned to aviation frequencies was discovered near Mr. Higazy's belongings.  He was detained by the FBI and relentlessly interrogated.  Mr. Higazy at first denied knowing about the radio and denied owning the radio.  The FBI agent allegedly then reminded Mr. Higazy that his brother and sister remained in Egypt and the FBI could arrange for their interrogation by Egyptian authorities.  That interrogation would be far more brutal than anything the FBI could inflict on Mr. Higazy personally.  The agent admitted saying that he could "make sure that Egyptian security gives [Higazy's] family hell." T he agent even explained his understanding of the Egyptian interrogation methods: "that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don't advise people of their rights, they don't - yeah, probably about torture, sure."

           Higazy himself had this same understanding and realized he was in a very difficult situation.  He could admit the radio was his, and be linked directly to the 9/11 attacks but save his family form torture, or deny ownership of the radio and subject innocent family members to torture.

           Higazy's dilemma was complicated by the fact that he himself was innocent. The radio belonged to a commercial airline pilot who later asked the hotel if it had located his radio.  Before the airline pilot realized his radio was missing, Higazy, faced with his Hobson's choice, admitted owning the radio, in an effort to avoid having his relatives tortured by Egyptian authorities. He signed a written confession to that effect.  After the pilot surfaced, the FBI determined that Higazy's 34 day detention and interrogation were all just a big misunderstanding.

            Higazy field a Bivens action against the FBI agent, but the District Court granted summary judgment in favor of the agent.  Higazy appealed.  The Second Circuit reversed, holding that Higazy's claim that his coerced confession was used against him created a triable issue of fact.  The concurring opinion misses the obvious point that Mr. Higazy was still under coersion when he made his court appearances and never challenged the coerced confession in a motion to suppress.

           Howard Bashman linked to the court's published opinion the same morning it was released.  As he tells it, the Clerk of Court later contacted him an told him the opinion was retracted and request that he take down his link to the opinion because some of the facts in the opinion had been submitted to the court under seal.  He correctly refused to do so.   As he points out the only difference between the retracted opinion and the new opinion is that the references to torture have disappeared in the redacted version.  There has been no explanation offered for the necessity of putting the information under seal.  It is probably common knowledge that other countries' interrogation tactics are more brutal than our own.  The Egyptian government's campaign the Muslim Brotherhood is public enough to have a Wikipedia entry.  That alone would not seem to be reason to seal the records.  We are left to speculate, but the only reason I can come up with is that the government did not want to publicize that the FBI's own interrogation techniques involve threats of torturing relatives.

Thanks to Howard Bashman, patriot, for his refusal to remove the link to the original opinion.

Posted by Joseph R. McFaul on Sunday, November 04, 2007 at 00:00 Comments Closed

Senate Comittee approves Law of the Sea Convention

The Senate Foreign Relations Committee has voted to approve the UN Convention on the Law of the Sea.

There is broad support for ratification.  The military favors ratification.  Many sectors of the marine industry favors ratification and now the White House favors ratification.

The United States is one of the few countries that has not ratified the convention, competed in 1982.  The convention is a comprehensive international agreement regulating the law of the sea and commerce in international waters.  It generally expands the rights of coastal states to control activities in adjacent waters and creates an International Exclusive Economic Zone for coastal states.  The United States has the largest EEC of any country as a result of the Convention.  Now, over 155 countries have ratified the Convention.  The United States asserts that most of the Convention restates customary international law and the United States will therefore observe most of the Convention's provisions and also will recognize other countries' claims under the Convention.

The United States originally objected to Part XI of the Convention.  Part XI sets up an international authority to regulate deep seabed mining in international waters.  This authority is (unimaginatively) called the International Seabed Authority (ISA).  Objections to the ISA centered on the claim that US participation in the ISA and Part XI would require the United States to unreasonably relinquish its sovereignty.  In addition, the United States appeared to be one of the few countries capable of mining the deep seabed floor and was reluctanct to give up a perceived enconomic advantage.  The deep sea floor was known to be littered with nickel-rich manganese nodules that only the US and a few other countries had the technology to exploit.  The ISA was intended to provide a responsible method of regulated mining and prevent an outbreak of "international gold rush fever" potentially damaging the environment and creating international legal and financial havoc.

As matters have turned out, the price of nickel has dropped since the 1980's and seabed mining has yet to be proved profitable, although technologically feasible.   Meanwhile, a 1992 "Agreement on Implementation," executed by several countries and the US, was intended to accommodate US concerns about international regulation of the seabed.  The ISA has continued to work with the United States under that agreement.  The US acknowledgment of the legitimacy of most of the Convention and the US participation in the 1992 agreement means that, for practical purposes, the US has accepted in concept all of the Convention but is not currently allowed to obtain the benefits of participating in the ISA.  If the US ratifies the Convention, the US will be one of the five permanent members of the ISA, minimizing any remaining soverneignty concerns.

The current objections to ratification renew the claim that the US would give up some of its sovereignty by ratification.  These rambling and disjointed objections are reminiscent of the longstanding and ultimately futile "Get US out of the UN" campaign.  The US should ratify the Convention and obtain all the benefits of this valuable international agreement.

Posted by Joseph R. McFaul on Friday, November 02, 2007 at 00:00 Comments Closed

Halloween treats

Happy Holloween everybody!

Pumpkin carving can be an art but can also be a chore.  Some Halloweens I am lucky to carve a pumpkin whose teeth remain attached.  Other Halloweens I can carve the "David" of cucurbita pepodom.  It's probably too late for this year, but check out this site for some creative pumpkin carving designs for next year.

Anybody offering pumpkin carving tips that include "Power Tools" and "Fire light and Pyrotechnics"  has my attention.

If you are injured while out trick-or-treating tonight, and decide to sue Satan and his minions, don't do it as a class action.  Also, specifically plead how Satan and his minions caused your "downfall."

Don't be shy, enquiring minds want to know.  Boo to all!

Posted by Joseph R. McFaul on Wednesday, October 31, 2007 at 00:00 Comments Closed

Blogs I read

My colleague Craig Williams was recently (and justly) noted as one of the ten most widely read law blogs.  He challenged me to list my ten favorites.  Many of my favorites already appeared on Craig's list or on the lists of the other winners.  For that reason, I'm listing several worthy blogs that don't get as much attention as they deserve.  I also want to make a point.  Many law blogs are specialized.  If you are interested in or work in a legal specialty, I am sure there is at least one well-written blog devoted to that exact specialty.  If there isn't, you have a great opportunity to contribute to the profession.  I periodically check the blogs of those specialized areas of law that I encounter in my own practice.  This blog research often uncovers blog articles directly relevant to the issue in my own case.  It's relatively easy to check a well written blog article's original sources to verify the accuracy of information and then develop that information into a useful argument on behalf of a client.  Blog searches can save you time and your client money. 

Here' my list, spanning academia, the bench, real practice and even humor:

University of Chicago Faculty Blog

Becker Posner: Two great legal minds in unique legal format, each posting on the same subject allowing readers to get two perspective for the price of one giving us The Becker Posner Blog.

I love real estate fraud cases. The sheer ingenuity and brazenness of the participants is impressive. Natalie Dollar, keeps us informed of the latest creative scams and reinventions of old ones at The Mortgage Fraud Blog

It's probably best to analyze First Amendment and religious issues from a distance First Amendment law. Canada is far enough.  Howard Friedman's The Religion Clause
 does a great job makign sense out of a diffcult subject.

How Appealing
Condolences to Howard--the Phillies will be back next year. A prolific nationwide round up of legal news.  A daily visit.

Mirror of Justice
Natural law, social justice and philosophy generally from a group of Catholic law professors

Anonymous lawyer.
Unreal (or too real) humor, depending on your point of view.  If Dilerbert's pointy haired boss went to law school and became a partner, he'd write this blog.

Overlawyered and Point of Law
Names suggest the viewpoint.

Blog 702.  A great resource for Daubert/expert witness issues orgainzed by state and subject matter.

Ernie the Attorney   One of the original law blogs, written by an attorney just doing his job. Just what a law blog ought to be: the trials, tribulations and successes of a sole practitioner in Louisiana.

Posted by Joseph R. McFaul on Friday, October 12, 2007 at 00:00 Comments Closed

Commission calls for improved science in the courtroom

The LA Times reports that defective expert testimony is the second leading cause of wrongful convictions.  Mistaken eyewitness testimony is first.  According to the Times, the Commission on the Fair Administration of Justice criticized the current procedures for admitting expert testimony, claiming that the current system for evaluating expert testimony does not work well.

The Commission has called for new standards for the admissibility of scientific analysis and evidence.  According to the Times article, "Commissioners expressed some doubt that the give-and-take between prosecutors and defense lawyers can ferret out problems with scientific evidence. The report cited the rapid development of DNA evidence and the need to train lawyers and judges in its use and misuse."

The article continues, "The traditional reliance upon the adversary system to expose errors may break down when it comes to forensic science evidence....Many of the examples of wrongful convictions attributable to misconduct or negligence by forensic experts could have been avoided if defense lawyers were fully competent to challenge the evidence."

All lawyers need to develop their scientific expertise. Lawyers challenging the admissibility of proposed expert testimony need to be able to understand the science, or lack thereof, underlying the expert testimony and point out deficiencies to the trial judge. The trial judges must also be scientifically adept enough to reject proffered evidence that lacks scientific support.  Copies of the report and proposed legislation can be found here.

Posted by Joseph R. McFaul on Wednesday, May 09, 2007 at 00:00 Comments Closed