Sunday, August 23, 2009
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A man named Joe lost his wife in 1999 to brain cancer. The wife, Pam, had smoked for thirty years, starting in 1969, until she got lung cancer, which lead to her brain cancer. Back when Pam started smoking, cancer-stick companies only had to put general health warnings on the packages. It wasn’t until the 1980s that the warning labels had to include the threat of cancer.
Joe then did the American thing; he sued the manufacturer of Pam’s particular brand of coffin nails, Phillip Morris, in a Nevada federal court. He, or his attorney, told the court that Phillip Morris is strictly liable for Pam’s death. Strict liability is a lawsuit claim used when a business sells a dangerous product. If Joe can prove that Phillip Morris caused Pam’s death, Phillip Morris will have to pay. But Joe did not want to have to prove his case. Instead, he wanted the Court to make Phillip Morris prove that they did not cause her death. Usually a Plaintiff has to prove his case, but here, Joe figured the wicked Phillip Morris must disprove its case without Joe having to prove the normally required element of causation.
Joe basically wanted the court to tell the jury that the jury could presume that if the cigarette packages had the cancer warning when Pam started smoking, she would not have started smoking. In other words, Joe wanted the jury to assume from the beginning that Phillip Morris is in the wrong and Phillip Morris then had to prove that it was not in the wrong. Somehow, Phillip Morris would have to provide evidence that Pam would have smoked their cigarettes even if the cancer warning label had been on the packages--clear back in the 1960s. Come on now, that was the 1960s, dude. Do you really think a lot of the young people back then would have listened to warnings? I mean, gosh, wasn’t that the time of experimental drug use. Also, wasn’t the military actually handing out packs of cigarettes to the soldiers?
Anyway, Phillip Morris did not want to have to try to prove to a jury that Pam would have ignored the warning labels. They told the federal judge that this “heeding presumption” should not apply in this case. A heeding presumption is what I’ve been talking about--a jury may presume that a person would have heeded a warning if a warning had been given and the defendant then has to try to prove that the person would not have heeded the warning. It’s almost like a religious person asking an atheist to prove that God does not exist.
Well, since this is a federal case in Nevada and the federal judge did not know what to do, the judge decided to ask the Nevada Supreme Court what it thought. Does Nevada condone “heeding presumptions” like some other States do? The Nevada Supreme Court answered, “No!” Phillip Morris therefore won this little skirmish. Joe would have to prove causation.
You might ask why the Nevada Supreme Court would side with the manufacturers of death on this issue. Well, our scholars in black robes said that a heeding presumption is contrary to Nevada law and public policy. The Nevada Supreme Court is correct on the law issue. Nevada has never allowed heeding presumptions. And, I believe their point about public policy is sound too.
Joe said that other States have heeding presumptions because it forces companies to better label their products, and therefore heeding presumptions are good for the public, so they are good public policy. If companies knew they could be sued for not properly labeling their dangerous goods, then they would label them better.
Nevada is smarter than those other States, though, because we tell the companies that sell stuff here to make sure the stuff isn’t dangerous in the first place. If it’s not dangerous, then why would you have to warn? In other words, the public is safer when companies can be sued for strict liability. Warning labels do not make us safer, safer products do. I’ll end this with a Supreme Court Justice’s quote from the case:
[…] we strongly adhere to the principle that a manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in the warning. Therefore, we conclude that it is better public policy not to encourage a reliance on warnings because this will help ensure that manufacturers continue to strive to make safe products.
If you still want to read this long, boring Nevada Supreme Court decision after I have taken all the trouble of explaining it, you may. The decision is called Rivera v. Phillip Morris, and it was decided in June 2009.
Copyright: August 23, 2009
By: Anthony M. Wright, Juris Doctor
Friday, August 21, 2009
You quickly realize that you have your own insurance policy which has “under-insured motorist” coverage, abbreviated to “UM”. Hey—your mother was worth more than $1,000,000 and so clearly the other driver was under-insured because his policy limit was a measly one million. You, or your lawyer, cleverly decide to try to get your insurance company to pay more with the idea that your insurance company should pay you for the death of your mother.
Your mean-spirited insurance company then says, “No way! Your under-insured motorist coverage only pays you when someone hits you. It does not pay you if someone hits your mother. Your mother was not insured under your policy.”
But then you, or your brilliant attorney, argue that you ought to still be entitled and so you sue your insurance company under that theory. And, voila, your local elected judge agrees with you! Magic! You are entitled to more compensation! Did you see that coming? Well, many lawyers might see that coming since elected judges answer to citizens who vote and also gossip with other citizens about a judge’s merit, but insurance companies are not citizens who vote (but let us not get too carried away with local politics because insurance companies lobby congress and probably buy legislative votes on laws that favor them on a much larger scale than locally).
So, you have won another financial victory in honor of your dead mother. Or have you? Don’t celebrate too quickly. The insurance company appeals the district court judge’s ruling in your favor and the mean-spirited Nevada Supreme Court actually agrees with your mean-spirited insurance company. Mean-spirited people often think alike, don’t they? Therefore, the moral of this story is that your UM coverage is for you and others that are listed as insureds in your policy, but do not cover people who are not listed, no matter how near and dear they are to you.
This scenario is more boringly but fully described in the case Allstate Insurance Company v. Fackett.
Copyright: August 22, 2009
By: Anthony M. Wright, JD
Anyway, he ran from the cops who waited for him to exit the bank, and they finally caught him in an apartment complex hiding behind a washing machine. The cops saw the stolen loot and toy gun. He was convicted of the three crimes and decided to appeal while rotting in prison. The Supreme Court took one look at this scumbag’s argument, and disagreed with him. Berry thought that he was being clever by using a toy gun. His limited intellect told him that maybe he wouldn’t get hard time if he used a toy instead of a real weapon. Surely a judge would think he wasn’t so bad since he could not have killed with an unloaded toy.
Well, the unloaded toy was still considered a deadly weapon, partly because it could potentially be adapted for such since it had a spring mechanism, trigger, and the potential to shoot a pellet or perhaps .22 bullet. Also, he intended for his victim to believe it was a deadly weapon in order to effectuate his crime. The victim, if she had been allowed to have a handgun on her while working at the bank, could have shot him in “apparent” self-defense because she would have reasonably believed her life was in danger.
The moral of this tale--don’t be stupid.
Copyright: August 21, 2009
By: Anthony M. Wright, J.D.
Wednesday, August 19, 2009
Whether you committed a crime or not, you have the right to remain silent when being questioned by an authority figure. The right against self-incrimination is a constitutionally protected fundamental right. This article will point out a few of the reasons you should keep your mouth shut.
The police are not there to help you. They are there to gather evidence against you. Officers will play the good cop by acting like they want to understand you and will be on your side. Then, if you are less than forthcoming, the same cop or another one will become angry and attempt to threaten you into confessing. Do not fall into these traps.
The officers might act like they are just conversing with you. The fact is that they want to gather sufficient evidence so that they have probable cause to arrest you, at which point they will read you your rights-but it could be too late already if you confessed. The officers will say that you confessed voluntarily, even if they manipulated you long before they arrested you. Who are you to then stand up in court and call our fine peacekeepers liars?
Officers can purposefully or negligently miss-write on their reports what you told them. Police reports are considered to be pretty good evidence in court. When you take the stand and recount under oath the events leading up to your arrest and what you say does not match up with the police report, the District Attorney can then ask you the damning rhetorical question of, "Were you lying then or are you lying now?"
If you told the police anything, whether you are innocent or not, you have just made it much more difficult for your attorney later on to present a theory of the case that could show you are not guilty. By speaking to the officers, you are reducing your possible defenses.
A wise man once said something to the effect of "a person is not condemned by what is put in the mouth but by what comes out of." Therefore, when approached by an officer, be polite, courteous, and quiet.
Thus, our little metropolis has four parts patrolled by police that belong to each jurisdiction. Las Vegas Metro cruises around Las Vegas and Clark County, however the cops in Henderson stick to Henderson and the cops in North Las Vegas stick to North Las Vegas.
When you get a citation, one of the first things to look for on the citation is which jurisdiction you are in. It is possible that the cop cited you outside of his jurisdiction. If so, do not argue with the "peace" officer because it could ruin your day, if not your life. Instead, smile warmly, thank him for protecting public safety, and take the ticket to an attorney who will argue the jurisdiction issue before a judge or district attorney who will likely dismiss the citation or greatly reduce the severity--say reducing it from speeding 25 mph over the limit to a parking ticket.
You should consider a few things when you receive a ticket. Yes, you are probably guilty. If you are guilty, you committed a crime. The crime is a misdemeanor, which is the least severe crime to be charged with. Even though a fine is usually the punishment, jail time and community service are also at the Judge's disposal, along with requiring traffic school, and points on your driving record--which can result increased insurance premiums.
If it makes you feel better, consider it not a punishment but a user tax. If you use your vehicle a certain way, expect to pay a tax for doing so. The jurisdictions raise revenue through these user taxes. We live in a state that has no personal income tax, so be grateful about that. However, do not ignore the court appearance date or you could be faced with a "bench warrant" for your arrest. This is not fun because you will likely go to jail if stopped again. In addition, an attorney will charge extra to quash the warrant.
Please note, the worst thing you can do is act upset with the police officer who stopped you. They may treat you very poorly, they may search your person (it's called a "Terry Pat Down Search") to look for a weapon or drugs...likewise they may search the passenger compartment of your car all in the name of officer safety. They may do these things on their own initiative, but if they ask to search, politely refuse to consent. If they have to ask, then they probably do not have the requisite reasonable suspicion or probable cause to do it without your consent. It is not wise to consent to a search because cops can literally tear your car apart as part of the search. And then there is the possibility that someone left contraband in your car that you were never aware of-try denying it is yours-I dare you. Cops, district attorneys, and judges have heard that argument a hundred billion times. The best thing to do is to not consent to a search no matter how innocent you believe you are.
Officers are sometimes known to violate Civil Rights and the law, but they have the guns and their buddies in blue to back them up, therefore it is in your interest to be on their best side. The best revenge for a traffic ticket is to hire a lawyer to represent your interest at the courthouse.
Usually lawyers can settle the ticket and you'll end up only having to pay a fine. If you are the type of person to get tickets all over the valley, you should note that some jurisdictions have much heftier fines than others do. I will not tell you which because I want you to be on your best behavior while driving at all times, but just know that a ticket in one part of town may be 5 times more expensive than in another part of town--even after the ticket has been reduced.
My public service message to you is to treat the ticket like a user tax, smile at the officer politely so that you can live to pay the fine. Most importantly, hire my firm to represent you for your traffic citation. By doing so, you will not have to appear in court-which could be an all day affair for you and I think you probably have better things to do. Call me and ask us what we charge, I firmly believe that when you know what you get from an attorney for the money you pay, you will deem it worthwhile to hire an attorney for your tickets.
Crimes in the United States are generally classified as misdemeanors, gross misdemeanors, and felonies. Misdemeanors generally are crimes that are not very serious such as speeding. Gross misdemeanors are crimes that we consider more dangerous or more serious, and felonies are the crimes that generally involve evil intent and victims.
The Supreme Court of the United States has held that police officers may arrest any person if there is probable cause of a crime. It is within the cops' discretion to arrest you if you were speeding in your car, throwing a cigarette on the ground, loitering, and riding your bicycle without using proper hand signals. The probable cause comes from the officer witnessing you committing the crime.
Some cops will arrest you and justify the arrest in the police report by claiming you were belligerent and they did not believe you would sign the citation in which you promise that you will show up in court. This could be a lie on the part of the officer, but without video footage of the arrest, it is your word against the police.
Law-abiding citizens are often arrested on minor offenses because they are shocked by the attitude they are given by police who stop them. Surprised at being stopped and at the condescension of the officer, the misdemeanant will say something to the effect of "I know my rights."
If you argue with the cop or offer an excuse for you behavior, you could be doing yourself a grave disservice. I can tell you of a cop who stopped this fellow for speeding. The fellow said that he had not seen the speed limit sign, hoping the cop would understand and let him go with a warning. Instead, the cop wrote him the citation for speeding and added another citation for inattentive driving.
Cops do not like to hear any lip and can arrest you. Cops do not care that you already feel humiliated that you are being charged with a crime when you believed you were adhering to the law. They do not care that you are a law-abiding taxpayer and you pay for their salary.
Some of the slickest criminals are ex-felons. They understand the cop psychology and act with the utmost respect toward the officer, saying "Yes sir" and "No sir" and "thank you for informing sir". Even though these ex-felons probably do not pay much by way of taxes and are not responsible for contributing to police salaries, police treat them much nicer sometimes.
If you act like the boot-kissing sycophant with a cop, the Cop may think you are a convicted criminal, however generally the cop will treat you better than if you act like a law-abiding citizen who knows his rights.
Be calm, courteous, and quiet with police officers when stopped. If they harass you, keep your cool or you will fuel their adrenaline and make them more apt to treat you worse.
They can be believable by keeping journals of fictional accounts where they claim the other parent yelled at them in front of the child, or threatened them, etc. They will have family members vouch for them in court and lie on the stand.
This all being said, the court is faced with a serious dilemma, whom to believe. It is therefore recommended that both parents keep journals detailing the raising of the children so that memories cannot fade. One reason people appear to lie on the stand is that they have forgotten something from the past. I also strongly encourage parents to video tape all exchanges and activities.
Parental alienation, however, is even more insidious than accusations of abuse or neglect. It is a form of conscious or unconscious mental and emotional coercion where one parent will cause the child to believe certain things about the other parent, causing the child not to want to be with the other parent.
A few examples include:
--Spoiling the child with material possessions with full knowledge that the other parent does not wish to spoil the child. The child will then favor the parent who gives in to all the material demands of the child and will dislike the parent who is trying to teach patience and humility.
--Speaking badly of the other parent. Suggesting the other parent does not really love the child or that the other parent is very immoral or evil human being.
--Undermining the other parent's efforts to teach morality by teaching a counter-morality.
A parent who has to deal with another parent who alienates their child should take steps early on to prepare for court battle. The more evidence presented at court by one parent will cause the court to believe the presenting parent. A child should not be a pawn in a battle for vengeance and the parent who clearly has the child's best interest at heart should win with the proper presentation.
Tuesday, August 18, 2009
In law, judges often face the issue of whether to follow the letter of the law or to follow the spirit. This issue is by no means a new one and has probably been around since humankind first learned to write. It is one of the major reasons to have lawyers.
Judges are supposed to interpret laws; this is their primary function. Judges generally are not supposed to create law; that is the job of the legislature. However, sometimes legislatures draft laws without really thinking about all of the potential problems with interpretation. Savvy lawyers will use these loopholes created by confusing language to influence a judge's decision.
Lawyers who say that a law is black and white do not want judges to interpret beyond the "four corners" of the statute. They will argue that if the legislature wanted the law to be different, then they should revise the wording. Until then, the judge should apply the law in the strictest sense.
Lawyers who want the spirit enforced wish to make the judge consider why the law was enacted in the first place. They argue that the motivation for the law is more important than the actual language.
By way of example, let us say a statute declares, "Any person caught drinking and driving is guilty of a misdemeanor, for a first offence, punishable of up to a year in jail, or for a second offense, is guilty of a felony, punishable of not less than one year and not more than 5 years."
Willy is pulled over by a police officer and is cited for drinking while driving. Willy was in fact drinking water out of a plastic bottle while stopped at a red light.
Willy hires me because the prosecutor wants to make an example out of him and send a message that violators will be punished. I read the statute and laugh at how stupid the legislators were in drafting the statute.
I decide that I want to influence the judge by making the judge consider the spirit of the law. The legislature wanted to punish people for drinking alcoholic beverages while driving the vehicle, but the legislature neglected to clarify this in the statute.
The prosecutor does not care about the motive. He wants a conviction because he believes that drinking anything while driving is dangerous. He tells the judge that if the legislature meant "alcoholic" beverage then it should revise the law, in the meantime Willy must go to jail.
The judge appears to believe the prosecutor's viewpoint. I can see it in the glint of his eye. The judge has been embarrassed in the past because he did not follow the statutory language to the letter and a higher judge overturned his decision. Now, I am beginning to feel like I am losing.
So I might say, "Your honor, I fully understand that the letter of the law should be applied even if the intent was to curtail alcohol consumption while driving. If we are going to look at the plain meaning of the statute and not consider the motivations of the legislature, then it is important to consider that Willy was not in fact driving when he drank. The statute clearly states that a person must be driving, however Willy was stopped at a stop light. Thus, by the very language of the statute, he is not guilty of violating the law."
The judge's grimace lightens, his face softens. He never wanted to agree with the prosecutor but felt he had to because the statute seemed clear. My argument, however weak, would be enough to get Willy off.
The prosecutor might argue that Willy simply being in the car with the motor running was "driving" but because the statute did not define the word "driving" the judge is free to interpret the word. The judge could say "driving" meant only the condition of being in motion.
So, in this example, I might have lost on the strong argument that the spirit of the law was more important than the letter of the law, however I won on a much weaker argument. This is sometimes the case.
There was a time about 2000 years ago when a group of legal interpreters focused so much on the letter of the law that challengers were killed. These scholars went through hundreds of scenarios to determine if people were guilty of violating the word of the law. Now, the really interesting thing about the words of these laws were that they were considered holy, direct from the mouth of God. Thus, the scholars wanted to make sure that they interpreted correctly. How better to make sure the word of God was followed than to strictly construe the meanings of the words?
Therefore, according to their interpretation, a person who saved his work camel from drowning in pouring rain on Saturday was guilty of working on the Sabbath and punishable.
Then came a guy who said that the spirit of the laws was more important then the literal meaning of the writing. He explained that the motive behind the laws was to create a happy life for the adherents and give believers hope and joy. The scholarly interpreters (aka "the Pharisees") did not like this obnoxious trouble maker who thought he understood better than they, so they called the police and had him arrested. Then they told the judge that he was causing too many problems with his ideas. If the government wanted peace, they would have to silence this interloper. So they did. They killed him.
Whether this story about Jesus and the Pharisees is literally true does not matter. The spirit of the story tells us that lawyers, like Jesus, can get in a lot of trouble for upsetting the time-honored ways of doing things.
Lawyers know that whether you argue for letter or for spirit, you must be prepared to suffer the consequences, so, they argue for both. You will note that in my example about drinking and driving, I explained how I would use both tactics. I argued spirit first and word second because my goal in this one instance was not to change the stupidly drafted law. Nope--my goal was to free Willy.
Lawyers are often accused of speaking out of both sides of their mouths. Incidentally, most politicians are lawyers too. There is a reason for it. We want to cover all of our bases. If one argument won't win, try another even if it seems contradictory. Its called, "arguing in the alternative". Have a nice day!
Copyright: May 2007