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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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When Funny Things Happen On the Way to the Courthouse Print E-mail
by John Browning    Mon, Oct 14, 2013, 10:59 AM

In case the government shutdown has you worried about missing out on all the strange happenings at our nation’s courthouses, fear not; there’ enough weirdness going on in the legal system to keep you happy for quite some time.  Consider the following strange tales from our justice system:


Justice is Blind—Really


David Holton is a district judge in Jefferson County, Kentucky.  By day he calls the shots in his courtroom, presiding over a wide variety of legal disputes.  But on most Friday nights this time of year, you can find Judge Holton in the press box at local high school football games, where he serves as the stadium announcer calling the contests.  While that may not be all that unusual, consider this—Holton is blind.  That’s right: Kentucky’s only blind judge (who played football as a boy until a tumor caused him to lose his sight) is up in the press box for Western High School in Louisville, announcing the plays and keeping the stadium crowd excited.  Judge Holton is always accompanied by his guide dog Buddy as well as his “spotter,” Louisville attorney and friend Thomas Patteson, who acts as Holton’s “eyes” and whispers the play by play into his ears.  The result is seamless, and most people attending the games have no idea that Holton can’t actually see the game.  Judge Holton says, “I can’t see anything at all.  I try to get across what I would need to know, if I were there in the stadium.”  When you think about it, it’s not that strange to have a blind judge acting as a stadium announcer for football games; after all, judging by some of the calls I’ve seen lately in college and pro football games, blind men have been serving as referees for years.


Do As I Say, Not As I Do


In New York, the state’s Joint Commission on Public Ethics fines lawyers for ethical lapses like not renewing their law licenses.  The Commission’s director of ethics and special counsel, Robert S. Cohen, should be more aware of this than most lawyers.  Yet that didn’t keep him from the very embarrassing mistake of letting his own law license lapse in 2012—oops!  As soon as the oversight was pointed out, Mr. Cohen promptly renewed his license like everybody else.  Leadership by example is apparently a concept they’re still struggling with in New York.


Can I Have Your Autograph?  And a Mistrial?


Oscar-winning actor Tom Hanks is a very down-to-earth guy.  He recently showed up for jury duty in Los Angeles, serving out his civic obligation by serving on the jury of a domestic violence case.  But during a break, a recent law school graduate serving as a volunteer prosecutor with the L.A. City Attorney’s Office (but who was not prosecuting the case Hanks’ panel was considering) approached the actor in a stairwell and gushed over what a great guy he was for serving on the jury.  Oops—lawyers aren’t supposed to have contact with jurors outside the courtroom.  The defense lawyer sought a mistrial, the judge wasn’t happy, and the case ended with a plea deal for the defendant.  The L.A. City Attorney’s Office is “reviewing the incident,” and maybe they’ll realize that by using free labor fresh out of law school, sometimes you get exactly what you pay for.


Now Blow Out the Candles


A woman in Washington state recently had to stop by the local courthouse before continuing on to her child’s birthday party, and decided that the cake would be safer with her than left in the car with her dog.  As it turns out, that was a bad move.  After entering the Cowlitz County courthouse, the woman put the chocolate cake down on a table while she went through the metal detector.  Unfortunately, the cake proved to be too big a temptation for 50 year-old Robert Fredrickson, who was on his way to a court appearance.  Fredrickson attacked the cake, grabbing handfuls of cake and frosting before sheriff’s deputies grabbed him and forced him to the ground.  All’s well that end’s well—a local grocery store provided a replacement cake, and “cake molester” Fredrickson has added an arrest for 3rd-degree theft to his growing criminal body of work.


Really Alternative Dispute Resolution


There are a lot of ways to resolve business disputes, and the legal system provides many of them.  But Seattle-area business owner Mike Hanson is proposing a novel way to settle things between his company and San Francisco-based classifieds website—put it all on the upcoming showdown between the Seattle Seahawks and the San Francisco 49ers.  Lawyers for Craigslist have issued a cease and desist notice to Hanson, claiming his business (a Seattle-based company that connects people who need a truck with someone who has one so they can pick up or deliver items purchased off Craigslist) infringes upon trademarks owned by Craigslist.  Hanson issued his novel challenge to the classifieds giant in a recent video posted to YouTube: he’ll hand over everything—his trademark, the company’s phone number, even the Craigstruck shirt off his back—f the Seahawks lose to the 49ers on December 8 in Candlestick Park.  But if the Seahawks win, Craigslist has to drop the lawsuit, as well as fly Hanson to San Francisco for dinner on it.  There’s been no work on whether Craigslist will accept the unusual challenge, but imagine how the legal system would change if everyone adopted an approach like this.


A Case of Blue Balls


Get your minds out of the gutter, folks.  I’m talking about the recent lawsuit filed by Stan Michelman against Blue Man Group, claiming that he was grievously injured by a “large blue plastic or rubber ball” that was allegedly thrown into the audience at a June 2011 San Francisco performance by the comedy/musical troupe.  The Novato, California man alleges that he was not warned in advance that “items would be thrown into the audience,” and that he suffered “great mental, physical, and nervous pain and suffering” and incurred over $40,000 in medical bills.  I’m not particularly a fan of Blue Man Group, but this seems pretty silly to me—especially since the group’s website features footage from performances where they do a lot of strange stuff, like throw blue rubber balls into the audience.


Let the buyer beware, and duck when those blue balls come hurtling toward you.

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