02 September 2009

A Round Tuit

My grandfather was an industrious sort. He used to say that he'd get some task or chore done when he "got around to it"; he'd then reach into his pocket to produce a wooden disk the size of a half dollar with the word "Tuit" written on it and excitedly bustle us off to do whatever it was that needed doing.

I thought of that recently as the to-do list grew at the office, my motivation to do my weekend chores waned, and my writing slowed to a trickle. Fortunately for us in this modern age of international commerce, Round Tuits can be had for a small charge. The above image is of a coaster-sized Round Tuit offered by the well-known online legal gift shop Carbolic Smoke Ball Co.

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it. Now that we have a (virtual) round tuit, I thought I'd take a moment to share a few posts worth your attention mid-week.

Eugene Volokh and Douglas Berman reported a recent decision by the North Carolina Supreme Court in Britt v. State, concerning the right to bear arms under that state's constitution. Volokh notes that "since this is an interpretation of the North Carolina Constitution, the decision is final, with no basis for further review by the U.S. Supreme Court...." Because the state's constitutional language parallels the Federal Constitution, Berman took the opportunity to consider a few possibilities:
1. Does this ruling automatically extend to all other NC felons who can show a "history of respect for the law [and] the absence of any evidence of violence" in their lives? My guess is that a lot of drug and drunk driving felons might reasonably make such a claim; but do they need to go to court to get a formal ruling that they are like Britt?

2. Because Britt had his civil rights restored under state law, he is no longer prohibited under federal statutory law from possessing a firearm. But can this ruling help NC felons who don't have their civil rights restored if and when they get charged in federal court with felon-in-possession under federal law?

3. Will any lower federal courts be moved by the bold and clear assertion in Britt that the NC blanket ban on felon gun possession is "an unreasonable regulation, not fairly related to the preservation of public peace and safety"?
Lacking the intellect to reason through those excellent questions, the first thing which came to my mind was that old joke about a fellow who misread the Second Amendment and took a load of weapons to the forest to arm bears. Rick Horowitz was perhaps thinking along those same lines when he recalled his father's saying, "If worms carried shotguns, robins wouldn't eat them. "

It's been said many times that bad cases make for bad laws and, as Horowitz notes, a couple of recent bad cases are likely to make for more bad criminal laws in California. An incident in the Central Valley in which a ten-years-old boy shot his father prompted calls for increased criminal penalties, particularly against younger offenders; in Northern California, the revelation that a convicted sex offender had imprisoned a girl for eighteen years after kidnapping her at age eleven threatens to derail efforts to release non-violent offenders and ease the state's prison over-crowding. Horowitz is particularly critical of the state's Republican legislative minority's efforts; he writes:
Forget that our laws are already among the most draconian in the nation and that therefore California leads the pack — competing even with other countries for the lead — in locking up its citizens. Forget that most of the laws do not and cannot actually achieve their desired goal. Forget that all this is the primary reason California is going broke and unable to fund important social programs (like schools).


Comes the cry from Repugnicans, this case is proof that our laws are too lenient. We need tougher laws than those already bankrupting California. We should not be letting prisoners out early. We need to lock people up longer. Hell, if you commit a crime — Repugnicans don’t seem to care how trivial — you should never get out of prison. Ever. As in “E-V-E-R” for the rest of your natural life. The Taliban got nothin’ on California Repugnicans.

Kevin O'Keefe urged lawyers to "seize the moment" this week, suggesting that the present technological and professional climate offers unique opportunities to those willing to take a chance:
At some point in your life guys, you need to make a move. You need to go for it. No one is going to come along and hand you the type of clients you want so you can do the type of work you dream of. Luck is the residue of planning, hard work, and moderate risk taking.

You're so fortunate that at no time in the history of the legal profession has it been easier to get what you want.


Seize the moment. There's never been a better time to do so.

Do it for yourself. For your family. For your employees. For the people you can help. And for the image of our legal profession - we need a few caring champions.
The curmudgeons amongst us might mutter that the present economic climate just means that many of us have little left to lose in a risky new endeavor. Everyone's right. Perhaps a few people just needed to get a round tuit? If by "a round tuit" one means developing basic lawyering skills and refocusing on client needs, Brian Tannebaum tends to agree. He writes, "There will always be some form of BigLaw. Big companies can't have the law firm of You and Your Partner, P.A. handling the hundreds of legal matters that they face. But what will change, is that Big Company will no longer tolerate BigLaw's big billing and the use of one too many associate on their matter. The winners here are solo and small firm lawyers, if they play it right and get back to basics[.]" A good place to start developing one's skills would be Matt Kaiser's new Federal Criminal Practice class at Solo Practice University.

In a series of posts (here, here, here, and here), Ken of the Popehat blog reminds us of the uncertainty of life. His home in Southern California is threatened by the massive Station wildfires currently burning near La Canada. He writes of "the taste of ash" with which he and his family have lived for nearly a week now. Last Saturday, he told us that things were "looking grimmer":
The Station Fire in La Canada Flintridge, the town where I grew up and the town next door to us in La Crescenta, is out of control, 5% contained at most. The winds are blowing towards us today, the heat is scorching, and the dry brush of Angeles Crest is strong fuel. The day started in a dim haze of smoke and ash, and throughout the day the great malevolent plume, looking like a mushroom cloud, has roiled and turned shades of coffee and chocolate as it has found rich veins of fuel. Huge swaths of the mountains, typically covered in tans and army greens, are denuded. There are now evacuation areas west, east, and north of us. The nearest mandatory evac area is about 8 blocks north, the nearest voluntary area about four blocks north. Could the fire get to us? Possibly. If it did, it would be catastrophic in loss of homes — on the order of the Oakland fire some years ago.
As the fires moved closer, his family and many of their more valuable possessions were moved to relatives' homes nearby but out of the path of the blazes. Finally, on Monday, Ken wrote that he had received a mandatory evacuation order from fire authorities. Many firefighters from my area have been dispatched to Southern California to assist in the efforts there; if I was a praying sort of fellow, my prayers would be with Ken and his family right now.

Perhaps "carpe diem" means finding joy where one can, as Norm Pattis has. He wrote this week of "the joy of hate mail":
I hate to say this, for fear of what it will attract, but anonymous hate mail is good for the soul. I get a piece from time to time. Receiving it is sort of like an atheist's trip to a confessional.


But I thank the hateful writer. This past weekend, I have reviewed my hate list. There are folks on it who have vowed to kill me. We keep a list of threats in the office in case I turn up missing. And I am painfully aware of cases on which I could have done a better job. I am also aware that there are times when a client would be better off with a different lawyer, or, perhaps, with medication and a psychiatrist.

Am I perfect? Nope. Not even close. But that doesn't mean I will give up trying. So how do I do it? I pick up my bed each day and walk toward the brightest light I can find.

New York State Judge Sol Wachtler famously opined, "Any good prosecutor can get a grand jury to indict a ham sandwich." Oddly enough, a few years after saying this, Judge Wachtler was himself charged with extortion, interstate racketeering, blackmail, and other crimes; he served nearly a year in a federal facility. As this is a family blog, I'd like to note for the record that the sandwich pictured above is an unindicted ham sandwich; he may not have much bread, but his father was a hero.

What do wealthy drug dealer Zhenli Ye Gon and former Senator Ted Stevens have in common? Both could afford to pay hundreds of thousands of dollars to have their attorneys and investigators work tirelessly to uncover prosecutorial misconduct in their cases. What do middle- and lower-class defendants and ham sandwiches have in common? They cannot afford these costs and are particularly vulnerable to unscrupulous, unchecked, and unpunished prosecutorial behavior.

Mike Cernovich discussed the inequities of the present system:
[I]n the majority of cases, no one will ever discover prosecutorial misconduct. Without a private investigator or a client capable of paying for around-the-clock research, how can the missing evidence be found?


Equal justice under the law is a constitutional requirement, not a privilege one purchases for six-or-seven figures. Yet, as most high-profile cases of prosecutorial misconduct show: Only the rich are finding the hidden evidence.
Cernovich proposes that the open files policies in place in some jurisdictions be expanded to all jurisdictions and cases; such laws would require all documents collected by prosecutors to be turned over to defendants' counsel, rather than leaving to prosecutors the decision whether particular documents are exculpatory in nature. He urges that prosecutors caught cheating be "named and shamed" and that matters involving misconduct be routinely referred to bar associations for disciplinary proceedings.

There's not much more odd these days than what one sees on "reality" television. Ryan Roberts highlighted a failed entrepreneurial effort on a recent program and emphasized to other start-ups that when intellectual property is central to the business, it must be transferred to the company:
After the break, all the investors pulled their deals off the table. Without the intellectual property, there was no business. The investors (rightfully) assumed the patent was owned by the company.


When starting a company involving intellectual property, you must transfer the IP to your startup. For example, if the intellectual property is developed prior to incorporation, you can transfer the IP via the founder’s stock purchase and tech transfer agreement.

Eric Turkewitz was concerned this week about one end in particular — his wife's. She injured her coccyx at a Delaware waterpark and Turkewitz considered the various assumption-of-risk and liability issues involved:
[I]t would appear that (under New York law) this would be a particularly troublesome case to bring due to assumption of risk. Except for that part about Jungle Jim's failing to track the injuries that take place on the attraction. The failure to track makes it impossible to determine if this attraction at Jungle Jim's has more injuries than others.

Most people, I think, when going on a roller coaster or water park type ride, make the assumption that it is the fear of injury and death that provides the fun, and assume that actual injuries pertain mostly to those with cardiac conditions or pregnancy. There is also some jostling to be expected, and the odd bruise here and there.

But if the ride repeatedly causes injuries, is that something "commonly-appreciated" or a danger that is readily apparent from the sport or recreation? This could, conceivably, crack open the liability door, though that could take substantial work if records aren't being kept.

And what is the law in Delaware where this event happened? While I assume it is similar to New York, I'm not a particularly litigious person, notwithstanding my career choice, so I'm not going to find out. I assume anyway that after a few weeks my wife will be fine. Even if the liability door was open, I would reject the case based on these injuries.


Ken said...

Thanks for the kind words. My evacuation ended, and my family got back in our house last night. Other families to the north and west are still in danger, though.

Unknown said...

It's good to know that you're back to a semblance of normalcy. We're a few hundred miles to the north, but if there's anything I can do, don't hesitate to call. Take care.

My Law License said...

very cool post.