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What I Love About Texas Print E-mail
by John Browning    Mon, Feb 24, 2014, 11:52 AM

        Texas troubadours like Pat Green and Lyle Lovett have expressed their love of Texas in song, with lyrics waxing nostalgic over everything from honky-tonks to tubing down the Guadalupe River.  Well, I love Texas too, but as a lawyer, my take on things is from a somewhat different perspective.  I may not go on about bluebonnets, barbeque, or the beauty of the Marfa lights, but there are traits that I treasure about our legal system.


Don’t Mess With Texas, or Texas Monuments


In Texas, we’re justifiably proud of our history, and we take steps to protect it.  That’s a lesson learned the hard way by people ranging from rocker Ozzy Osbourne to Daniel Athens.  Osbourne, of course, relieved himself at the Alamo and was promptly banned from San Antonio (he later made a substantial donation to preservation efforts for the historic site, and was forgiven).  On February 4, Mr. Athens became the latest person to learn the hard way that you don’t mess with Texas when he pleaded guilty to a felony for urinating on the Alamo.  Chapter 28 of the Texas Penal Code makes it a felony to deface a public monument or place of human burial.  Athens faces a sentence of anywhere from 180 days to two years in state prison for his act.  Bexar County District Attorney Susan Reed, whose office prosecuted not just Athens but other offenders over the years who have defaced the Alamo with graffiti, says “You don’t mess around with the Alamo.  Nobody does, man . . . we have to preserve our heritage.  It’s a shrine.  It’s all about respect.”


Think Your Courthouse is Dangerous?  Try This One


        Courthouses, like many public buildings, will have their infestations of rats, mice, or creepy-crawlers like termites or cockroaches from time to time.  But in at least one Texas courthouse, the varmints are a lot more dangerous, and quintessentially Texan.  Last November, officials at the Galveston County Courthouse had to post signs warning people “Rattlesnakes in Area” after rattlesnakes were found basking in the sun on the courthouse lawn.  Some of the venomous reptiles were over a foot long.  Signs were posted cautioning visitors, “Do not walk through the grass.  Remain on concrete walkways.  Do not leave children unattended.”  2013 was the third straight year for rattlesnake sightings at the courthouse, and county officials are now considering different landscaping options less hospitable to snakes.  So, remember, if you visit Galveston County, there are dangerous snakes at the courthouse—and some of them are outside on the lawn.


Our Cuisine is So Good, Even the Legal Disputes About It Will Make Your Mouth Water


        We take our food seriously in Texas—serious enough to go to court over it.  Our state courts have been hosts to disputes over the trade secrets associated with Tex-Mex restaurant recipes as well as the trademarks for barbeque joints.  And in a lawsuit currently pending in Harris County, warring taco chains are litigating a legal beef that is uniquely Texan.  Torchy’s Tacos (with twenty locations around the state) claims that the upstart Texas Taco Company (with three locations) stole confidential information from its “Taco Bible,” described as “a start-to-finish recipe and process guide for every one of Torchy’s food items.”  Torchy’s lawyer maintains that, thanks to the wrongful conduct of a former Torchy’s employee, Texas Taco Company is “nothing more than a blatant Torchy’s ripoff.”  The lawsuit alleges that the security cameras at one of its Houston locations captured former employee Mario DeJesus smuggling a copy of the “Taco Bible” out.  DeJesus was questioned and fired shortly thereafter, and roughly two months later, Torchy’s management learned that DeJesus was not only working at Texas Taco Company, but the upstart’s menu allegedly featured food item descriptions identical to those on Torchy’s menu, with only a change in name.


Our Prosecutors are Packing


        Few states whole-heartedly embrace the Second Amendment quite like Texas does.  We have one of the highest percentages of gun ownership in the country, a concealed carry law, and if you can’t find a gun show on each weekend, then you’re probably not looking hard enough.  It’s legal for judges and prosecutors to carry firearms.  Of course, there are some prosecutors who probably need to think long and hard before packing heat.  For example, last November, McLennan County Assistant District Attorney Michael Jarrett was admiring the new Glock semiautomatic pistol belonging to one of his colleagues while inside the courthouse.  Thinking the gun wasn’t loaded, he aimed it at an office window and fired, shattering the glass and striking a brick cell at the nearby county jail.  Jarrett, who has a concealed carry permit, says “I was being extremely safe.”  Apparently, not safe enough.


        And in Houston, a Harris County assistant D.A. is in trouble over an alleged road rage incident last month.  Susan Sciacca, who works in the Family Protective Services Division and prosecutes cases of child abuse and neglect, was charged with aggravated assault with a deadly weapon.  According to Johnny Leazer, after he might have inadvertently cut off the prosecutor while driving on Tomball Parkway, she allegedly followed him into a nearby bank parking garage and pulled out a handgun.  Leazer says “I honestly thought she was going to shoot me.”  Sciacca claims she was in fear for her life during the incident.  A bank surveillance camera purportedly captured the incident on video, but the footage has not been released.

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The Power of Belief Print E-mail
by John Browning    Wed, Jan 29, 2014, 09:27 AM

Belief can be a powerful thing.  Sometimes, the law will, under certain circumstances, show deference to that belief, such as the individual who recently persuaded the Department of Motor Vehicles to allow him to have his driver’s license photo taken while wearing a spaghetti strainer on his head (he claimed to be a practicing “Pastafarian”).  On other occasions, the law will be less deferential, as in cases of so-called “honor killings” in the United States committed by persons claiming to be following the culture and customs of their homeland.  As some cases illustrate, however, sometimes the tighter the hold that certain beliefs have on an individual, the sweatier his grip on reality seems to be.


For example, in South Carolina, a court recently found a man not guilty (by reason of insanity) of arson for burning down his own home.  The man committed the act thinking that witches were in his home.  Yes, witches—not the practicing Wiccan type but the flying around on broomsticks, “Wicked Witch of the West” variety.  The judge agreed with mental health professionals, and sentenced the defendant to up to 120 days in a state mental health facility.  And in Iceland, a highway project was halted pending concerns over the construction’s impact on the environment and “elf habitats.”  Yes, elves.  Believe it or not, the Supreme Court of Iceland is expected to rule on a case brought by the “Friends of Lava,” a group that, among other things, advocates for elves, or “Huldufolk (Icelandic for “hidden folk”).  The group wants the Icelandic Road and Coastal Commission to abandon the road project because it would disturb the elf habitat, including an area that contains an “elf church.”  As silly as it may sound, a 2007 survey by the University of Iceland found that 63% of the respondents felt it was at least possible that elves exist.


But before you laugh off the idea that lawyers (as opposed to their clients) could be swayed by silly beliefs, consider the following two lawyers—Michael Busby, Jr. and Robert Allan Wright, Jr.  Mr. Busby is an attorney in Houston who practices bankruptcy and family law.  In December 2013, Busby paid a Houston fortune teller, Melena Thorn of the “Psychic Love Spell Center” $30 for a tarot card reading, $500 for a “ritual to reunite husband and wife,” and $2,700 in cash in a box so it could be “cleansed.”  Busby alleges that the money was not “cleansed” and returned, and that he and others have been defrauded by the so-called psychic.  He’s seeking at least $1 million in damages, as well as an injunction to keep Thorn and those connected with the “Psychic Love Spell Center” from engaging in “fortune telling” or “practicing or advertising Psychic abilities” in Texas.  Busby is also asserting claims for breach of contract and for violating Texas consumer protection law, the Deceptive Trade Practices Act.  Busby says he has had tarot card readings in the past as he sought out “anything that helps give me an edge.”  How will the case turn out?  Without my crystal ball or Magic 8-Ball, I probably can’t say.


As for Robert Allan Wright, Jr., he is an Iowa lawyer who has been practicing for more than 30 years.  Apparently, though, that’s not long enough for him to know better than to fall prey to an Internet scam promising a windfall of millions from Nigeria.  One of Wright’s clients would supposedly receive over $18 million from a long-lost relative in the African country, as long as $177,660 in “Nigerian inheritance taxes” and additional monies for an “anti-terrorism certificate” were paid.  Attorney Wright solicited over $200,000 in loans from current and former clients promising a huge return on their investment, and he himself looked forward to a $1.8 million contingency fee.


Wright communicated with a variety of people he thought were lawyers, bankers, and in one case, the president of Nigeria.  He transferred all of the money he raised to the Nigerians.  Yet—color me surprised— no money or “inheritance” was ever paid.  Not long thereafter, the clients and former clients from whom Wright had borrowed money brought disciplinary complaints against the lawyer.  In December 2013, the Iowa Supreme Court suspended Wright’s license to practice law for at least one year.


Was it criminal stupidity?  For the Iowa Supreme Court, it was a case of too much belief and not enough competence.  The Court observed that “Wright appears to have honestly believed—and continues to believe—that one day a trunk full of . . . one hundred dollar bills is going to appear upon his office doorstep.”  The Court also said that Wright should have investigated further and been more competent in such efforts, since even “a cursory internet search” would have alerted the lawyer that the “dream of a Nigerian inheritance was probably based on a scam.”


Belief can indeed be powerful, but without some brainpower or good old-fashioned common sense to back it up, it can be useless.  And if you don’t believe me, then perhaps you’d like to discuss some oceanfront property in Arizona that I have . . . .

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Moonlighting Judges Are At It Again Print E-mail
by John Browning    Wed, Dec 4, 2013, 10:03 AM

When it comes to indulging in sidelines, lawyers have a fair amount of latitude.  There are lawyers who have gone into fields as diverse as broadcast journalism and creating Lego art.  Prominent Hollywood entertainment lawyer Harry Brittenham writes elaborate sci-fi/fantasy graphic novels in his spare time.  Litigator Neville Johnson’s alter ego is that of blues singer-songwriter Trevor McShane.  High-powered bankruptcy lawyer Kenneth Klee, when he’s not charging top dollar for legal advice, practices alternative medicine as an “energy healer” who says he can “talk to spirits, mend broken bodies and wounded souls and, if necessary, perform exorcisms,” according to the Wall Street Journal (and why shouldn’t it make sense for a lawyer to perform exorcisms?  After all, everyone says that “possession is nine-tenths of the law.”).


But for judges, it’s a completely different story.  When it comes to doing anything other than being a judge, jurists are subject to considerable scrutiny because of judicial canons against lending the prestige of their office to advance private interests, or bringing the office into disrepute.  Because of this, members of the judiciary have to be very careful about their off-the-bench activities, and even hobbies and interests.  For example, in South Carolina, a magistrate judge recently had to get the blessing of an official ethics opinion before participating in a “Dancing With the Stars”-type of competition.  South Carolina’s Advisory Committee on Standards of Judicial Conduct, in Opinion No. 4-2013, examined whether a full-time judge could participate as a dancer in a fund-raising event for the judge’s church.  In the event, the judge would be one of 5 dancers from the congregation paired up with a local dance professional, and donations would be solicited for the church, with people contributing (and voting for the winners) online.  According to the Committee, the judge could participate in the fundraising event, as long as he didn’t personally solicit donations, the identities of contributors were kept confidential, and the religious organization didn’t use the prestige of the judge’s office in fundraising efforts.


Dancing magistrates in South Carolina may be one thing, but what about a cooking judge in Florida?  The Florida Supreme Court’s Judicial Ethics Advisory Committee recently dealt with an inquiry from a judge who wanted to compete in a cook-off held during the 12th Annual Grace Jamaican Jerk Festival as a “means of community outreach and levity.”  Noting that while the cooking contest offered a cash prize for the winner, it was not a fundraiser, the Committee said it was okay.  The Committee reasoned that “participation in the cook-off would not appear to exploit the judge’s judicial position or involve the inquiring judge in frequent transactions or continuing business relationships with persons likely to come before the court on which the judge serves.”  The Committee also pointed out that—regardless of the judge’s culinary skills—participation could be a good thing since “a judge should not become isolated from the community in which the judge lives.”


Dancing and cooking may be all well and good, but heaven forbid that a judge have a sense of humor that he shares with others.  At least that’s the reasoning of the New Jersey Supreme Court.  In September, New Jersey’s highest court considered the appeal of part-time municipal judge Vincent August Sicari, who for years juggled a daytime gig hearing traffic ticket cases on the city court bench for South Hackensack, N.J. with a night job as stand-up comedian “Vince August.”  In a unanimous opinion, the Supreme Court ruled that Sicari’s comedy career was “incompatible with the Code of Judicial Conduct.”  Among other considerations, the court observed that Sicari’s comedy routine involved some jokes poking fun at national origin and religion, and it was possible “that a person who has heard a routine founded on humor disparaging certain ethnic groups and religions will not be able to readily accept that the judge before whom he or she appears can maintain objectivity and impartiality that must govern all municipal court proceedings.”  In the wake of the decision, Sicari resigned from his part-time judicial post.


Seriously?  Does religion and national origin really come up much in the context of traffic ticket cases?  I guess if you’re a judge you can dance in South Carolina, cook up a storm in Florida but no matter what you do, don’t make people laugh in New Jersey.

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It’s All in the Way You Phrase It Print E-mail
by John Browning    Wed, Dec 4, 2013, 10:02 AM

Let’s face it: how you choose to express yourself matters.  The words you choose, the tone you take—it’s all critical to how your message is received.  This is especially true in the law and in the disputes that find their way into the legal system.  Take quarrels between feuding neighbors, for example.  Depending on how one neighbor chooses to express himself, a garden-variety argument could escalate into the Hatfields and the McCoys in no time.  52 year-old Brian Malta of Kiantone, New York apparently has both an ongoing beef with his neighbors in the rural western New York village and an appreciation for military history.  He’s been charged with repeatedly firing his historic Civil War cannon at his neighbors, and has been charged with harassment and menacing.  Malta, who’s out on bail, fired the cannon only with a powder charge and wadding (no cannonball), but that didn’t stop the police from confiscating it.  And Alan Markovitz, a Detroit-area strip club entrepreneur, had perhaps the ultimate expression of disdain for his ex-wife after their divorce.  He bought the house next door to her and erected a 12 foot-high, $7,000 bronze sculpture of a hand with its middle digit raised in the direction of his ex-wife’s house.  Markovitz even had a spotlight installed so that night and day, the sculpture can be clearly seen from his former spouse’s window.  It’s as if he was hoping for a Mastercard commercial: “Buying the house next door to your ex – $300,000; having a giant sculpture installed – $7,000; flipping the bird at your ex-wife for eternity – priceless.”


At the same time, we have to be careful about the words we use.  Energy drink giant Monster recently learned that lesson the hard way.  It all started when the drink company hired D.J. Z-Trip (a/k/a Zach Sciacca) to perform at its annual “Ruckus in the Rockies” snowboarding competition.  Following the event, Monster put together a highlight video, sound tracking it with a “megamix” that D.J. Z-Trip had assembled of Beastie Boys songs.  A Monster representative named Phillips then emailed the finished product to Z-Trip, asking the D.J. “Please have a look at the video from this past weekend and let me know if you approve.”  According to legal documents that were later filed, the D.J. responded “Dope!”


Monster went ahead and released the video—complete with Beasties songs—to YouTube, prompting a copyright infringement lawsuit brought by the Beastie Boys in August 2012.  Monster’s “defense” was to blame Z-Trip, saying that the D.J. had authorized the use and that he had breached a contract and committed fraud by posing as someone who could issue a copyright license on behalf of the Beastie Boys—all by virtue of using the word “Dope.”  Not surprisingly, a federal judge had no problem tossing out the claims against D.J. Z-Trip, saying no reasonable person could understand the “sparse communications” to constitute a granting of such rights.  The court even administered a benchslap, saying: “It would take a heroic effort of explication to derive such a conclusion from their words and informal email exchanges.  And to read Phillips’s or Z-Trip’s words to convey a contract to cede Monster such rights would flout common sense.” 


OUCH!  But my favorite recent reminder that words matter comes from a recent response to the prosecution’s motion in State of Tennessee v. Donald Powell, a criminal case pending in Williamson County, Tennessee.  When prosecutors filed a pre-trial motion seeking not to be referred to as “the government” (evidently, they were worried about anti-government feelings and wanted to be addressed as “the People” or “the State”), defense attorney Drew Justice filed a hilarious response (that has since gone viral) making sarcastic fun of the government’s silly position.


After pointing out that granting the prosecution’s motion would not only be inaccurate but would also violate the First Amendment, Drew Justice got down to snarky business.  He stated that if the government was allowed to choose what it would be called, then the defendant was entitled to similar treatment, proposing that Mr. Powell be addressed by only his full name, or simply “the Citizen Accused.”  Also, said Justice, “the designation ‘That Innocent Man’ would also be acceptable.”  And, since being referred to as a defense attorney or lawyer could be “prejudicial,” Mr. Justice suggested that he be referred to as the “Defender of the Innocent . . . Alternatively, counsel would also accept the designation ‘Guardian of the Realm.’”  Moreover, he argued, since the state was represented by the attorney general, it seemed only fitting that “the Citizen Accused” have “an appropriate military title for his own representative” and so he humbly suggested that “the name ‘Captain Justice’ will be appropriate.”  In addition, because the “whole idea of being defensive comes across to most people as suspicious” and “to prevent the jury from being misled,” Mr. Justice proposed renaming it “the Resistance.”  That would make him “Captain Justice, Guardian of the Realm and Leader of the Resistance.”


I like that.  But even if you or I never get to be called “Captain Justice, Guardian of the Realm and Leader of the Resistance,” remember that how you express yourself really does matter.

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Even More Funny Things That Happened On the Way to the Courthouse Print E-mail
by John Browning    Fri, Nov 1, 2013, 10:13 AM

          The legal system isn’t always about high-minded serious notions about justice, empowering the powerless, punishing the guilty, and righting wrongs.  It has its lighter moments, too, as the following examples illustrate.


Must Be Present to Win


          It’s a pretty basic concept, drilled into us from the very first church raffle (where you “must be present to win”) to the wisdom of Woody Allen (who said “90% of life is showing up”) to basics of litigation, which dictate that to recover money damages for being in an accident, you had to have actually been there (for starters).  But that concept was lost on attorney John Bruster Lloyd and his clients, Luke Cash and Ami “Summer” Gallagher.  Lloyd filed suit on behalf of Cash and Gallagher against Carnival Cruise Lines alleging that they were among the roughly 3,000 passengers stranded at sea amidst challenging sanitary conditions and limited food in February 2013 when the Carnival Triumph lost power.  There’s just one problem: the couple was never on board.  Lloyd admits that he “screwed up,” and has since filed an amended pleading in which the couple is still asserting claims against the cruise line for breach of contract, but which omits all that “suffering on board” stuff.  Carnival representative Jennifer de la Cruz stated “That this lawsuit was even filed, alleging the plaintiffs suffered injury and mental anguish during a cruise they weren’t even on, is truly shameful and reprehensible.  Further, the fact that the suit also alleges misrepresentation and fraud is quite ironic.”


Getting In the Last Word


          The Dallas Cowboys are still embroiled in litigation over the Super Bowl ticket fiasco, but even the wins come with a drawback.  After seeking nearly $200,000 for the costs of having to produce documents in the pending federal lawsuit, Cowboys owner Jerry Jones came away with only $25,025.  Then the plaintiffs’ attorney, Michael Avenatti, added insult to injury when he stated that “Hopefully, Jerry will take the $25,000 and hire a G.M. so the Cowboys have a shot at playing in the Super Bowl for the first time in nearly 20 years.”  Ouch!  Flag on the play for unnecessary roughness.


A Drink by Any Other Name Still Gets You Drunk


          I’ve written before about “trademark bullies”—the companies and their lawyers who send overzealous, heavy-handed letters to small businesses accusing them of trademark infringement.  One recent example is CH Distillery, a popular bar/restaurant/micro-distillery in Downtown Chicago’s West Loop.  After their popular “OxyContin Cocktail” (a mix of London dry gin infused with Lapsang Souchong tea, ginger, honey, and lemon—no pharmaceuticals included) began attracting buzz, the distillery received a cease and desist letter from lawyers for Purdue Pharma, the Stamford, Connecticut-based drug company that makes the potent painkiller.  Choosing to make lemonade with the lemons they received, CH Distillery has renamed the drink the “Cease and Desist” cocktail.  And apparently, with all the publicity, the drink and the bar are more popular than ever.  Thanks, big impersonal pharmaceutical company and your humorless legal toadies!


Speaking of Names


          I’ve also written before about unusual case names, many of which are derived from government seizure cases, where the practice is to name the item or animal seized as the “defendant”—see, for example, U.S. v. Article Consisting of 50,000 Cardboard Boxes, More or Less, Each Containing One Pair of Clacker Balls, 413 F. Supp. 1281 (D. Wisc. 1976).  One recent one, which went all the way to the South Dakota Supreme Court, involved an officer’s decision to impound a bunch of cats he found roaming around the car in which a woman had been living.  The officer, noting “a strong pet odor emanating from the vehicle,” impounded the felines, resulting in a case that now lives on in the annals of justice: South Dakota v. Fifteen Impounded Cats, 785 N.W.2d 272 (S.D. 2010).


There’s Always Room for Jell-O


          From crazy cat ladies, we move to another figure many of us have encountered—the lunchroom food thief.  The bane of any workplace, the person who steals the food of others from a communal workplace refrigerator has a special place in Hell reserved for him.  While some of us deal with such a problem in one way (say, lacing a “bait” dish with liberal amounts of laxatives, placing it in the fridge, and waiting for hilarity to ensue), others take it very seriously.  Like “calling the cops” seriously.  On October 11, 2013, a Pennsylvania warehouse employee of Wakefern Food Corporation called police to the scene of a crime—the theft of his strawberry Jell-O snack by “a person or persons unknown.”  According to Pennsylvania police, “the incident remains under investigation.”  What, no CSI team?


You Drove Me to This


          Romanian Radu Dogaru, one of six individuals on trial for a 2012 $24 million art heist from the Kunsthal Museum in Rotterdam, has admitted his guilt in the theft.  But Dogaru and his defense lawyer now want to pin the blame on the Dutch art museum itself.  They are threatening to sue the museum for negligence and failing to adequately protect the works by Monet, Picasso, and Gauguin, saying the museum made the robbery “too easy.”  Now I’ve seen everything.


A Punny Judge


          Finally, it’s time to revisit the topic of judges who like to include humorous references in their judicial opinions.  The latest is U.S. District Judge James Boasberg in Washington, D.C., who recently ruled on whether a nonprofit group, Scenic America, could challenge the Federal Highway Administration’s authority to issue guidance on the construction of digital billboards.  Ruling that Scenic America did have standing, Judge Boasberg decided to have fun writing the opinion, peppering it heavily with roadway references.  He pointed out that the FHA “shifted gears” and “gave the green light” for issuing guidance that “paved the way” for digital signs, while Scenic America “bypassed” some legal routes before it “collided head-on” with federal law.  The judge noted that the nonprofit group wanted “to put the brakes” on certain sign regulations, while critical motions were “throwing up roadblocks” to it efforts.  Although the case was “at a crossroads,” the court ruled that Scenic America’s arguments were “fueled by concrete harm,” bringing an “end of the road” for federal highway decision making.  Accordingly, Judge Boasberg ruled, the Court “declines to take either exit proposed by [the government] and orders that the case should speed on to its next turn.”


          I guess this case got Judge Boasberg’s motor running.

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