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More Wacky Warning Labels, and Other Legal Weirdness Print E-mail
by John Browning    Sat, Aug 16, 2014, 04:14 PM

It’s that time of year again when the Center for America releases the winners of its Wacky Warning Label contest.  Yes, nothing demonstrates how ridiculous and overlawyered our society has gotten quite like the warning labels chosen by the Center and its senior fellow Bob Dorigo Jones.  How far in absurd extremes will companies go in an attempt to avoid lawsuits?  Consider these finalists:

 

  • A sheet of decals (intended for bikes, bike helmets, skateboards, and scooters) given as a promotion by the NFL’s Buffalo Bills, which includes the warning “Decals are for decoration only and will not prevent you from any bodily harm or injury.”  If you think a decal doubles as a protective device, clearly your brain is no longer worth protecting; leave the helmet at home.

 

  • Speaking of helmets, another finalist is the warning label used by a football helmet manufacturer that reads “No helmet system can protect you from serious brain and/or neck injuries including paralysis or death.  To avoid these risks, do not engage in the sport of football.”  Let me see if I’ve got this straight: you’re in the business of making football helmets, and your advice is to not play the sport.  Good luck with that business model, folks.

 

  • The ink cartridge for a printer features a warning label on its packaging that reads “Do not drink.”  Seriously, if you need to be told not to drink printer ink, I not only don’t want you working in the office pool, I don’t want you reproducing in the gene pool.  It’s just too much of a risk.

 

  • The Mickey Mouse 4-in-1 Ride On toy, which bears a label that says: “Do not push vehicle while child is riding on it.”  I guess that leaves the sillier of two alternatives—push the vehicle when no one is on it and look stupid, or allow your child to experience the fun and play value in remaining absolutely still.

 

  • And maybe they’re onto something with that “no kids” theme.  Another finalist is the warning label on a cellphone battery charger which reads “Get rid of children.”  It’s either a really bad translation from the original language, or a cruel statement—take your pick.

 

Of course, wacky warning labels aren’t the only source of entertainment in the law.  There’s also the wit and wisdom of federal judges, like Judge Barry Ted Moscowitz of the Southern District of California.  Judge Moscowitz didn’t take kindly to the 495 total objections lodged by the defendants in Mills v. Buffalo Pumps, Inc. et al., particularly their objection on the grounds that one witness, a Mr. Willis, had not been shown to be unavailable to testify.  Judge Moscowitz pointed out that “The Court is confident that Mr. Willis is unavailable; he is deceased.  While federal subpoena power is broad, Mr. Willis is now beyond this Court’s jurisdiction.”  As both federal judges and pirates can agree, dead men tell no tales.

 

And speaking of the dead—“The Walking Dead”—another likely lawsuit may answer the question “If I run over a zombie, will my insurance rates go up?”  At San Diego’s annual Comic-Con recently, the driver of a car traveling past the annual mecca of all that is sci fi/fantasy/horror had a run-in with zombies.  Not the real kind, mind you, but a crowd of costumed people dressed as the flesh-craving undead taking part in the convention’s “zombie walk.”  The 48 year-old driver and his family in the car—who clearly do not watch much television—became “scared” of the slow-moving zombies as they lurched through the intersection and pawed at the car.  The driver sped up and then “plowed through” the crowd, injuring one woman who was taken to a nearby hospital.  Here’s a quick bit of legal advice: plowing through a crowd of zombies during a zombie apocalypse may save your life, but plowing through a crowd of people dressed as zombies as part of a science fiction convention will get you sued and possibly thrown in jail.

 

And just to show you that some people really do have problems distinguishing reality from fiction, I leave you with Ms. Ajanaffy Njewadda and her lawsuit against New York’s Metropolitan Transit Authority (MTA) and the cable network Showtime.  According to her lawsuit filed in late June, Ms. Njewadda fell down a Grand Central Terminal stairwell and broke her ankle on June 20, 2013 because she was “startled” by a disturbing ad for the Showtime series “Dexter” (which is about a serial killer who kills other serial killers).  The poster in question covered the side of every step in a stairwell leading to a shuttle train and depicted the face of “Dexter” star Michael C. Hall.  Njewadda claims that the “shocking and menacing” face frightened her and caused her to lose her balance, and has given her nightmares as well.  Both the MTA and Showtime have denied liability.

 

Maybe we need a warning label to place on people who can’t separate fact from fiction.

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Can’t We All Just Get Along? Print E-mail
by James Browning    Thu, Jul 31, 2014, 10:19 AM

The courtroom is not supposed to be a violent place. After all, our modern system of justice where parties resolve their disputes before an impartial third party (the judge) and/or a jury of their peers was intended to replace trial by combat-in which parties settled their differences by fighting it out (usually to the death).  For most of us, the closest we’ve come to seeing trial by combat is our television sets, watching “Game of Thrones” as Tyrion Lannister faces accusations against him by having a champion face off on his behalf in mortal combat (twice, with mixed results).

 

          As civilized as we may think ourselves to be now, that’s not to say that parties haven’t at least tried to evoke the concept of trial by combat.  In a 1983 case before Delaware’s Court of Chancery, the defendant Freedom Church of Revelation responded to a motion for judgment on the pleadings with a motion for trial by combat to the death.[1]  Not surprisingly, the court was not amused and admonished the defendant that “challenge of trial by combat to death is not a form of relief this Court, or any court in this country, would or could authorize.  Dueling is a crime and defendant is therefore cautioned against such further requests for unlawful relief.”[2]  Even merry old England doesn’t care much for the ancient right to trial by combat anymore.  In 2002, 60 year-old mechanic Leon Humphreys tried to contest a 25 pound fine for a minor traffic offense by invoking trial by combat.  Humphreys pled not guilty and then challenged the Driver and Vehicle Licensing Agency (DVLA) to select a champion for a fight to the death with “samurai swords, Ghurka knives, or heavy hammers.”  The court magistrates spared the DVLA the hassle of choosing a champion, opting instead to deny the motion, find Humphreys guilty, and fine him 200 pounds with 100 pounds court costs.

 

          Of course, there are those who try to bring combat back to the courtroom itself.  I’m not talking about litigant-on-litigant battling in a kind of “Thunderdome” match up (“Two men enter-one man leaves”).  No, I’m talking about lawyer-on-judge or judge-on-lawyer violence.  For example, Brevard County (Florida) Judge John C. Murphy mixed it up in June 2014 just outside his courtroom with assistant public defender Andrew J. Weinstock.  In a courtroom video that went viral, Weinstock can be seen at the podium refusing to waive his client’s right to a speedy trial, and Judge Murphy is heard saying “If you want to fight, let’s go out back, and I’ll just beat your ass.”  The two then exit the courtroom into a hallway off-camera, at which point a scuffle can be heard.  According to Weinstock, Judge Murphy did strike him in the head.  Not surprisingly, following the incident Judge Murphy (a retired, decorated Army Reserve colonel who served in Afghanistan) went into anger management counseling.  He took a four-week leave of absence, and Chief Judge John Harris of Florida’s 18th Judicial Circuit Court issued a statement condemning the incident, saying “People come to court seeking justice and a peaceful resolution to their conflicts and they have a right to expect a much higher standard of behavior from our judges than was exhibited in court yesterday.”  The fallout from the incident, however, is not over; the matter is being investigated by the Florida Judicial Qualifications Commission, the disciplinary body that investigates judicial misconduct.  In addition, Mr. Weinstock resigned from the public defender’s office in protest after Judge Murphy was allowed to return to the bench.  Maybe it’s time for a rematch, this time on pay-per-view.

         

At least in the U.S., we don’t have lawyers going after judges with flyswatters.  That was the case recently in Kazakhstan, where 35 year-old lawyer Evgeniy Tankov didn’t take too kindly to one judge’s ruling.  In yet another video gone viral, Tankov is seen approaching the judge with a flyswatter and slapping the judge with it three times.  The opposing attorney, 39 year-old Artem Ibragilov, then goes over and punches Tankov.  Seconds later, the judge is off the bench and physically grappling with Tankov as well.  Not surprisingly, Tankov has been barred from the practice of law and faces up to 10 years in prison for his unusual attack on the judge.

 

          Yes, the courtroom can be a violent place, even long after “trial by combat.”



[1] McNatt v. Richards, Court of Chancery of Delaware, Civ. Action No. 6987 (decided Mar. 28, 1983).  Hardly shocking, the pro se defendant’s motion for trial by combat followed pleadings that the court described as a “rambling tirade which asserts various preposterous allegations and claims.”

[2] Id.

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Lawyers Doing Good (Part II) Print E-mail
by mary williams    Wed, Jun 11, 2014, 06:46 PM

Some of the ways in which lawyers do good for the community are geared toward hope for a better future—such as raising money for charity, mentoring others, or building houses with Habitat for Humanity.  But for some lawyers, building a better future means righting some of the wrongs of the past.  For these attorneys, this entails not just reminding others of some historically-overlooked injustices, but also taking steps to remedy (albeit belatedly) those injustices.  While the legal profession itself has made great strides toward inclusiveness, its past is marked by racial injustice and discriminatory policies that are shocking to today’s lawyers.

One of these efforts to right a 124 year-old wrong is being led by University of California-Davis law professor Gabriel “Jack” Chin and a group of his students, who have submitted an application to practice law to the State Bar of California on behalf of Hong Yeng Chang, who was denied a law license back in 1890 solely on racial grounds.  Chang graduated from Yale University and Columbia Law School in 1886.  Although he was initially denied the chance to sit for the New York bar exam, a special act of the state legislature gave him that opportunity.  He passed, becoming the first Chinese immigrant to become an American lawyer.  In 1890, Chang moved to California with the intention of starting a law practice that would represent the booming Chinese immigrant community in San Francisco.  But the California Supreme Court denied his application, pointing to a federal law—the Chinese Exclusion Act—that barred Chinese from becoming U.S. citizens, as well as a California law banning noncitizens from practicing law. The court’s decision in Chang’s case is still studied today in law schools as an example of 19th century bigotry.  In 1943, Congress finally repealed the Chinese Exclusion Act, and in recent years both the Senate and the House of Representatives have issued apologies for the discriminating effects of that act and similar laws.  In 1972, the California Supreme Court allowed noncitizens to earn licenses to practice in the state.  Chang himself, though denied admission to the California bar, went on to a distinguished career in banking and diplomacy.

While there is no precedent in California for granting a posthumous law license, there have been similar efforts at redressing past discrimination.  In March 2001, the Washington State Supreme Court posthumously admitted Takuji Yamashita, who graduated from the University of Washington School of Law in 1902, and passed the bar exam, but was denied admission to the bar.  Like California, Washington’s supreme court and attorney general at the time relied on federal law excluding Asians from becoming citizens, and on the prerequisite of citizenship to be a member of the bar.  Yamashita appealed to the state’s highest court, arguing that this denial was an affront to the values of “the most enlightened and liberty-loving nation of them all,” but the state’s attorneys derided Yamashita’s “worn out Star Spangled Banner orations.”

After the state won, Yamashita faded for a time into obscurity, becoming a hotel owner and strawberry farmer in Kitsap County, Washington.  But he came roaring back in 1922 with a new crusade, this time against the state’s Alien Land Law, which prohibited “ineligible aliens” (primarily Asians) from owning land.  Yamashita took his fight all the way to the U.S. Supreme Court, but unfortunately fared no better than he had with the Washington Supreme Court in 1902.  Not until 1952 would Congress permit Japanese immigrants to become U.S. citizens, and it wasn’t until 1965 that Congress treated Asian immigrants on an equal footing with their European counterparts.  Washington state finally repealed the Alien Land Law in 1966 (on the fourth try), and it took until 1973 for the U.S. Supreme Court to grant legal aliens the right to practice law in all states.  Yamashita’s failed quests, first for a law license and then for the right to own land, became little more than dusty legal footnotes.  Like other Japanese-Americans, he was confined to internment camps during World War II.  He returned to Japan for what would be the last two years of his life, dying there in 1959 at the age of 84.

In the mid-1990s, several historians and descendants of Yamashita began to piece together his incredible story and to lobby the state of Washington to address the injustices of the past.  The ceremony marking his posthumous admission was a focal point of the University of Washington Law School’s centennial, and Yamashita was belatedly honored by then-Governor Gary Locke, Attorney General Christine Gregoire, and other dignitaries with 17 of Yamashita’s descendants from Japan in attendance.  Washington Supreme Court Chief Justice Gerry Alexander observed that “It’s impossible to undo what happened to Mr. Yamashita, but it’s important for us to make a statement that these things were wrong.  It’s a step toward healing.”

Another precedent for admitting Chang comes from Pennsylvania.  In 2010, the Pennsylvania Bar set right its own historical injustice 163 years after denying African-American George B. Vashon admission to the bar.  Vashon, born a free man in Pennsylvania in 1824, became the first African-American to receive bachelor’s and master’s degrees from Oberlin College.  He then “read the law” under the tutelage of Judge Walter Forward (who would later become U.S. Secretary of the Treasury), and made application to practice law in Allegheny County in 1847.  But Vashon was denied admittance on the basis of his “Negro descent.”  Vashon then moved to New York, where he became the first African-American lawyer in that state.  While he would go on to practice law in Syracuse and become best known as a professor (Vashon was Howard University’s first professor), Vashon never forgot being snubbed in Pennsylvania.  After being admitted to practice before the U.S. Supreme Court in 1867, Vashon again sought admission from Allegheny County the next year, only to be denied yet again.

After reading an article about Vashon’s life, Pittsburgh attorney Wendell Freeland was struck by the injustice.  In January 2010, along with several of Vashon’s descendants, Freeland and his co-counsel Leslie Carter filed a petition to the Pennsylvania Supreme Court, seeking a declaration that Vashon was qualified to be admitted to the bar.  The court agreed, and in a ceremony on October 20, 2010, George B. Vashon was at last admitted to the Pennsylvania bar.  His great-grandson Nolan N. Atkinson, Jr., who himself is a lawyer with a large national firm, said of the belated recognition, “[It] both acknowledges Mr. Vashon’s many accomplishments in law, scholarship, education, and justice—often in the face of great resistance—and finally redresses an historical injustice.”

In the case of Hong Yeng Chang, California’s Committee of Bar Examiners is scheduled to make its decisions in June on recommendations to the state supreme court about whether to admit or deny admission to bar applicants.  Laura Emde, a spokeswoman for the State Bar of California, calls this “a unique situation.”  But clearly precedent exists, in the form of actions by two state supreme courts, for righting such past wrongs, even if it is merely a symbolic gesture.  As Professor Chin points out, “Admitting Mr. Chang would be a powerful symbol of our state’s repudiation of laws that singled out Chinese immigrants for discrimination.”

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Real Life Law—Even Stranger Than Fiction Print E-mail
by mary williams    Wed, Jun 11, 2014, 06:44 PM
No matter what kind of plot twists, turns, and unexpected, you-didn’t-see-this-one-coming moments that you may see on television legal dramas like “The Good Wife,” they will never compare to the shocking moments that you can see on a regular basis in the legal world.  Last week, an exasperated judge in Florida actually challenged a public defender to a fight, then stepped outside and beat him up!  (Not surprisingly, that judge is taking some time off for anger management counseling).  And that’s not the only piece of oddball news, as the following examples demonstrate:

 

Trial Called on Account of Sex

A murder trial in Genoa, Italy was suspended recently because two members of the court’s staff were having sex—right next to the courtroom!  The couple was in an office with smoked glass windows, and clearly thought they couldn’t be seen or heard.  Unfortunately, the outline of two naked bodies was visible and their moans of passion were audible to Judge Anna Ivaldi and prosecutor Sabrina Monteverde.  The judge immediately halted the trial and had the lovers (one of whom is married) taken aside.  An investigation is pending.

Really Swift Justice

Who says the legal system moves slowly?  Dan Greding of Santa Barbara, California recently got a ticket for being parked longer than the 75 minute limit in a newly-redone block of that city’s downtown.  There’s just one problem: Greding is a sign installer for the city, and he was the one installing the very signs warning of the time limit when he was ticketed!  Yes, some overzealous parking cop wrote Greding a ticket while he was finishing up his installing and painting.  Says Greding, “I was dumbfounded.  I just put those signs up 20 minutes ago.”

 

Truth in Advertising

William Clyde Gibson of New Albany, Indiana, age 56, is accused of brutally killing 3 women.  After being convicted last fall of murdering one victim, Gibson made a rather poor choice in body art before the proceeding; getting a tattoo that reads “Death row X 3” on the back of his shaved head.  Concerned that the jury might be prejudiced by seeing a reference to Gibson’s other crimes, Judge Susan Orth ordered that the defendant not be given haircuts, so that his hair will cover the tattoo.  Gibson’s request to keep his cleanshaven look and simply cover the tattoo with makeup was denied.

 

That Takes Nerve

Roy Ortiz of Broomfield, Colorado may be grateful for being rescued by first responders during flash flooding that submerged his car last September.  But you wouldn’t know it by his actions.  Ortiz has filed papers indicating his intent to sue his rescuers, claiming that they took too long to respond and rescue him after his car was washed off the road on September 12, 2013.  As a result, Ortiz claims, he was trapped in his upside-down car for 2 hours, suffering injuries that resulted in about $40,000 in medical bills.  He’s seeking $500,000 in total damages.  Gosh, Roy, you shouldn’t have gone to the trouble of a lawsuit—a simple thank you would suffice.

 

Family Feud, Judicial Smackdown

Justice Ed Morgan lost his patience with both sides in a contentious spat between wealthy neighbors in a tony Toronto enclave.  The Ontario judge’s recent opinion recounted how the feud between an oil executive and his wife and a psychiatrist and his wife arose over an incident involving a bag of dog feces and escalated into a long-running expensive dispute.  In tossing out the case and ordering each side to bear its own court costs, Justice Morgan wrote that “the parties do not need a judge; what they need is a rather stern kindergarten teacher.  They are acting like children.”  If only more judges were like this!

 

Two Points for Slytherin

It’s never a good idea to lie on your resume.  It’s an even worse idea to use a fictional school as your alma mater, and probably the worst possible idea to use a well-recognized fictional school.  Yet that apparently did not stop one cheeky would-be lawyer in the United Kingdom from applying for a solicitor’s position with a firm, listing on his resume a law degree from Hogwarts—yes, the Hogwarts of “Harry Potter” fame.  Even if this creative young man doesn’t get an interview, let’s hope he took the “Defense Against the Dark Arts” course—that could really come in handy when dealing with lawyers.  And believe it or not, there really is a lawyer named Harry Potter—a criminal law specialist in London!

 

Worst Veterinarian Ever

Mistaking a human in a gorilla costume for a real gorilla usually only happens in the movies.  But at Loro Parque, a theme park on a Spanish island, the hiring standards for staff veterinarians are apparently pretty low.  During a practice drill to simulate an escaped animal situation, a park employee was dressed in a gorilla suit to add “realism” to the exercise.  It was too much realism for one hapless veterinarian, who shot the co-worker with a tranquilizer gun.  To make matters worse, the “gorilla” suffered an allergic reaction to the tranquilizer, and had to be evacuated to a nearby hospital.  A legal investigation is pending into all of this “monkey business.”

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The Rapping Lawyer and Other True Tales Print E-mail
by John Browning    Mon, Apr 14, 2014, 10:45 AM

Readers often ask if some of the more bizarre cases, litigants, and lawyers featured in “Legally Speaking” are made up.  They’re not.  Not only am I not creative enough to come up with such examples, I don’t have to—for the simple reason that our legal system is already packed with more crazy but true stories than I could hope to invent.  Consider the following:

 

Something is Fishy about This Lawsuit

 

Don’t invite Cameron Roth out for sushi anytime soon.  The Tennessee man has filed a lawsuit against the operators of a Tennessee haunted house, claiming that he choked on a live fish that he ate at their establishment, causing him to be hospitalized for four days.  The strange part is that Mr. Roth had paid a $15 entry fee to compete in the Frightmare haunted house’s live fish-eating contest, during which he was supposed to eat two live bluegill fish.  Roth choked when the first fish got lodged in his throat, a fact he blames on the operators’ failing to remove any of the spines from the fish (but how can they be “live” fish if you remove their spines?).  Roth seeks $150,000 in compensatory damages and $400,000 in punitive damages.

 

Teed Off

 

If entering a live fish-eating contest and then complaining that the fish had spines isn’t assumption of the risk, then how about the lawsuit brought against Playboy Enterprises and radio host Kevin Klein by Playboy model Liz Dickson recently?  The comely Ms. Dickson was one of the Playboy models “hosting” the Playboy Golf Finals event on March 30, 2012, when she agreed to take part in a stunt.  The stunt called for her to be photographed lying on her stomach with her buttocks exposed while Klein hit a golf ball from a tee that was placed between her, um, cheeks.  But the stunt went awry when Klein struck her buttocks instead, “causing her injuries and damages,” according to the lawsuit.  Although video of the incident shows Dickson laughing it off, now she’s clearly “teed off.”

 

Maybe the Dog Ate His Homework?

 

Richard Masten, the executive director of the Miami-Dade County Crime Stoppers, was recently in a Florida court, ordered to hand over an anonymous tip that led to a cocaine possession case.  But Masten either decided to defy the court’s order, or perhaps he just was hungry.  On videotape, in the courtroom Masten instead swallowed the evidence, a sheet containing information that could provide the tipster’s identity.  Masten, a former police chief in Florida, says “We promise the people who give us information to solve murders, serious violent crimes in this community, that they can call us with an assurance that they will remain anonymous and that nothing about them or their information would ever be compromised.”  Judge Victoria Brennan was not amused.  She fined Masten $500, and ordered him to turn over the information sought or face two weeks in jail for contempt.

 

He Won’t Roll Over, Either

 

There’s no limit to the talent of Scottsdale, Arizona attorney Mark Goldman’s bull terrier, Walter.  Walter has an “honorary law degree” and his own photo on the website of Goldman’s law firm.  But apparently Walter also helps sniff out scam artists.  It seems an increasingly common scam in which fraudsters approach an attorney asking him to represent a fictitious company to “collect a debt” was directed to Goldman’s law firm.  The scam artists tell the lawyer to take a generous cut of the “proceeds” (a false check) before forwarding a very real cashier’s check from the law firm’s (now artificially higher) bank account.  But Mark Goldman got rather suspicious when the “lawyer” the scammers targeted was Walter.  Needless to say, Goldman’s law firm didn’t bite.

 

The Rapping IP Lawyer

 

Lawyers have resorted to all kinds of advertising to attract clients.  Houston-based attorney Eric P. Mirabel is looking to take that concept to a new level—and perhaps dispel the notion of intellectual property attorneys as boring or staid— with a rap video.  Yes, a rap video starring our very own patent law gangsta Eric P. Mirabel, or “EPM.”  The video, which has to be seen to be believed, is on Mirabel’s website along with lyrics that are actually footnoted.  Sample lyrics include “You want patents? /You don’t have to yearn that/’cause I know IP, my record affirms that.” And “I twist up what’s written/use it as ammunition/I’ll gut your position or I’ll win by decision.”  Word to your mother—if this approach actually works, I may have to put on some bling and change my name to “the Notorious JGB.”

 

And Now For Something Completely Different

 

I’ve written before about judges who sprinkle “Star Trek” references, rock lyrics, and even Dr. Seuss shoutouts into their judicial opinions.  Now, courtesy of one alert “Legally Speaking” reader, comes a Colorado federal judge with a fondness for Monty Python.  U.S. Bankruptcy Court Judge Sidney Brooks was clearly a bit frustrated with one party in a bankruptcy proceeding who failed to give the court reasons for its request for certain sworn testimony, and then referenced the “reasons above” in making the request.  In a footnote, Judge Brooks found such reasoning reminiscent of the “reasoning” used to determine if a woman is a witch in the movie “Monty Python and the Holy Grail,” and even quoted the film’s hilarious exchange between peasants getting ready to burn an innocent woman suspected of witchcraft, and the “learned” knight who corrects them.  Now, if Judge Brooks could find a way to work in the Black Knight, a giant killer rabbit, and a holy hand grenade . . . .

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