May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates

Skip To Content

MIPTC Author:

Bookstore:


Listed in Latino Who's Who, June 2014
 Attorney
Locations of visitors to this page

Creative Commons License
This work is licensed under a Creative Commons License.


Quote of the Day - The finest inheritance you can give to a child is to allow it to make its own way, completely on its own feet. - Isadora Dunca
Adjust font size: A A+ A++
Claim Your Profile on Avvo
There are 2033 Journal Items on 255 page(s) and you are on page number 122

In terrorem Clauses Must Also Be Included In Amendments And Codicils

In terrorem clauses in trusts and wills have the (some would say nasty) effect of reducing the inheritance to something like $1.00 if someone challenges the validity of the trust or will.  But what if you make an amendment or a codicil to your trust or will, and don't put the in terrorem clause into the amendment?  Does it still apply?

That's what John tried to do in challenging his father's second amendment to the trust he set up for his children, John, Toinette and Valerie.  Toinette was appointed administrator of the trust.  As you have likely guessed, the second amendment reduced John's share of the inheritance.  John filed an application to determine whether his challenge to the second amendment would invoke the in terrorem clause.  Toinette, of course, took the alternate position since her inheritance was, of course, consequently increased. 

You would think that because the trust (and for that matter the underlying pour-over will) contained in terrorem clauses, that would be enough.  But if you did, then you would be wrong.  The trial court's ruling in favor of John's position was upheld by the appellate court.  So, if you want to place someone "in terror" of challenging your will or your trust, you must do so every time. 



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, April 26, 2006 at 13:26. Comments Closed (0) |

DMV, DUI, DUH! We May Need To Breathe To Start Our Cars

Forget gas prices.  We soon may need something else to run our cars.  Cars of the future may require your breath to start.

In a breath-a-lyzer.

You heard it here second.  First in USA Today.  Add about $1,000 to the cost of cars to include this device, and some irritation to blow into it if you're not a drinker.  Thank MADD if you're happy about it.  Get mad if you're not.

With a hat tip to Keren Lavelle, Deputy Editor of the New South Wales Law Society Journal, you can read here about the Alcohol Interlock program.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, April 25, 2006 at 23:59. Comments Closed (0) |

They Hired The Right Employee To Keep Track Of Work Absences ...

He Had Plenty Of Experience

Fine.  Call me Rush Limbaugh if you want, but this decision is just wrong. 

Here you've got an employee surfing the internet and the employer warning the employee to stop goofing off and start working.  The employee disregards the warnings.  The employer then disciplines the employee, and the employee appeals the discipline in an administrative hearing.

As if the surfing itself weren't enough, and just to top it off, the employee admitted in the hearing that he disobeyed the employer's orders to stop using the internet for personal reasons.  [As an aside here, I don't know whether the entry in that last link, complete with misspellings, was introduced as evidence at the hearing, but the employee made it on January 15, 2006, at 12:29:10, presumably while the employee was at lunch.]   But the New York Administrative Law Judge (in this link, the third one down on the right) let the employee get away with it, and ruled that the employer can only reprimand him for surfing the internet.  

The employer introduced evidence at the hearing that when the employer asked the employee why he was surfing so much, his one word response was "reading."  I would have never guessed.  [Just in case you're wondering, here's what he was reading:  lonelyplanet.com, google.com, renewnyc.com, humanesociety.com, chinaadviser.com, cnn.com, aircanada.com, cbsnews.com, escapeartist.com, and islandsun.com.]  The employee also admitted "regularly" visiting travel and government scholarship sites.  You can look too, but I don't advise "reading" any of those sites at work. 

To add insult to injury, let's add these facts into the mix.  Over the course of a year and a half, the employee was AWOL from work for 33 days, arrived late to work 49 times and left work early 23 times.  Given those absences, and the allegations of internet surfing, I'm betting the only thing he had time to do at work was surf the internet. 

Apart from his absences, the employee took his allowed vacation.  But not only did he take his vacation, here's a guy who also bought his vacation tickets before he put in a request to approve that particular time off, apparently assuming that it would be approved without question.  To put the icing on the cake, the ALJ ruled that the employee's absences weren't excessive.  If that's true, I'd love to have the ALJ's work schedule - he probably thinks working one day a week is too much.

Don't get me wrong here.  I like vacations as much as the next guy, but I think this ruling is over the edge.  That's just my humble opinion.

Oh.  One last thing.  They guy who was reprimanded is an analyst with the Division of Human Resources for the New York Department of Education.  His job includes the task of keeping attendance records for NY schoolteachers.  Go figure.  I guess that's the difference between government employment and private sector employment, but should it be that way?



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, April 24, 2006 at 17:11. Comments Closed (2) |

Coast to Coast Internet Radio Goes On The Road To The ABA Techshow

Coast to Coast is on the road at the ABA Techshow in Chicago.  Join me and my co-host Robert Ambrogi, a fellow Massachusetts Attorney and Law.com bloggers with two experts who focus on what's new in technology for lawyers today.   Bob reports from the floor of the Techshow with our guest Attorney Tom Mighell, member of the 2006 ABA Techshow Planning Board and a fellow blogger at Inter Alia

Also joining us is David Snow, editor of Law.com's Legal Technology online ezine.   David showcases original content as well as tech-related articles from across the American Lawyer Media network of publications and Web sites.  The ezine includes a dedicated EDD section, as well as legal-specific download and white paper directories. He is also Law.com's section manager, and editor of the twice-weekly Legal Technology Bulletin online newsletter as well as the Law.com Law Students site. Snow has been a correspondent for Wired News, homepage editor and Web producer at TechTV.com, and an editor and writer for numerous other publications and web sites.



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, April 22, 2006 at 14:18. Comments Closed (0) |

O'Grady v. Apple Arguments Submitted To Court - Testing Subpoena Of Blogger's Sources

MIPTC wasn't blogging it live from the Sixth District Court of Appeal, but here's the handicap version of what I saw and heard from an advocate's perspective (yesterday, I argued the Amicus Brief submitted by the Bear Flag League in the case of Jason O'Grady, et al. v. Apple).  Sure, there are plenty of news stories out there all the way from AP to ZDnet, and lots of reporters who listened to the arguments.  Here's the take from someone who made the arguments. 

The appellate court panel consisted of Presiding Justice Conrad Rushing and Associate Justices Eugene Premo and Franklin Elia.  The BFL's position on the case straddled the middle:  it agreed with Apple that this case was not ripe for decision, and it agreed with O'Grady that both bloggers are journalists (a point that everyone seemed to concede) and blogger's sources should be kept confidential.  Here's the tip why the BFL thought the case wasn't ripe:  Apple argued that the post that O'Grady put up was a trade secret, exposing the blogger and the source to both civil and criminal liability.  Essentially, it's a case of bad facts could make bad law.  The legal justification for the abstention argument was that O'Grady hadn't been made a party to the suit.

The BFL's position was bolstered by an opinion released just two days before, and written by Justice Elia.  It held that in an internet First Amendment issue, the court should abstain where the subpoena sought information from individuals who were both anonymous and non-parties.  In the O'Grady case, the only difference was that we knew the identify of O'Grady and the other posters of the Apple-alleged trade secret.   Surprisingly, when I brought up the case in oral argument, neither Justice Rushing nor Justice Premo had read it.  Justice Rushing replied, "We sit on different panels.  We don't always read each others' opinions."  I suspect that none of the other attorneys arguing the case for Apple, O'Grady or Intel had read it either; no one else talked about it. 

Apart from the BFL's position, the justices were fully briefed on the merits and seemed to support O'Grady's positions, even taking issue with the extent of the value of Apple's trade secret.  Justice Rushing said that the product that Apple claimed was a trade secret code named Asteroid - was technology that was 15 years old - "plugging a guitar into a computer," as he put it.  Justice Elia was unsympathetic as well, pointing out that Apple had done little to protect its trade secret, and instead was asking the court to act as Apple's "personnel department." and help Apple find "the snitch."

O'Grady's arguments were even more sympathetically received, and his counsel, Electronic Frontier Foundation staff attorney Kurt Opshal got a number of "softball" questions.  Quite the opposite was true for the other side, and Apple attorney George Riley and Amicus Intel's attorney, Dan Bagatell, were treated the same (and I dare say confused as representing the same party) by Justice Elia.  Both got grilled like steaks. 

My box score?  Two (Rushing and Elia) to one (Premo) in favor of O'Grady and against Apple. 



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, April 21, 2006 at 16:53. Comments Closed (0) |

Boring Old Patents Just Got Interesting

It's enough to make even the most seasoned litigator stand up and take notice.  It perhaps hit first with all the hullabaloo with the RIM patent litigation over the technology in the Blackberry, resulting in a settlement of well over $600M.  Long before that was the eBay patent litigation, which resulted in a mere (doesn't mere sound odd?) $35M verdict, and is now pending before the US Supreme Court.

Now, we see that Mary Kay is liable for violating dermatological (I had to look that word up to spell it right) patents, to the tune of $40M.  Then, TIVO hit for $74M, and could possibly get triple that amount since the infringement was found by the jury to be willful.  Some have accused people who buy patents and sue to enforce them as "patent trolls," and as if we haven't heard enough about the iPod, here comes the next Blackberry lawsuit.  Can you do without your iPod?

Wow.  And I thought patent litigation was boring.  Not anymore.   Enforcing your patent just became a new way to make money.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, April 18, 2006 at 22:13. Comments Closed (0) |

Jury Duty Phone Scam Strikes Close To Home

My friend the jury coordinator warns of this scam, apparently active in the area (reprinted with permission from Snopes):

"Here's a new twist scammers are using to commit identity theft: the jury duty scam.  Here's how it works:

The scammer calls claiming to work for the local court and claims you've failed to report for jury duty. He tells you that a warrant has been issued for your arrest.

The victim will often rightly claim they never received the jury duty notification. The scammer then asks the victim for confidential information for "verification" purposes.

Specifically, the scammer asks for the victim's Social Security number, birth date, and sometimes even for credit card numbers and other private information exactly what the scammer needs to commit identity theft.

So far, this jury duty scam has been reported in Michigan, Ohio, Texas, Arizona, Illinois, Pennsylvania, Minnesota, Oregon and Washington state.

It's easy to see why this works. The victim is clearly caught off guard, and is understandably upset at the prospect of a warrant being issued for his or her arrest. So, the victim is much less likely to be vigilant about protecting their confidential information.

In reality, court workers will never call you to ask for social security numbers and other private information. In fact, most courts follow up via snail mail and rarely, if ever, call prospective jurors.

Action: Never give out your Social Security number, credit card numbers or other personal confidential information when you receive a telephone call.

This jury duty scam is the latest in a series of identity theft scams where scammers use the phone to try to get people to reveal their Social Security number, credit card numbers or other personal confidential information.

It doesn't matter *why* they are calling all the reasons are just different variants of the same scam.

Protecting yourself is simple: Never give this info out when you receive a phone call."

Riverside County Superior Court issued a related warning last year, as did the Municipal Judicial Branch in Minnesota, and Congressman Tom Udall.  Be careful out there.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, April 17, 2006 at 22:27. Comments Closed (0) |

New Category In The Law: Why Appeal?

In the category of "Why did this case get appealed?", we get the State of California whining about taking its lumps after an unfavorable verdict.  Let me set the stage:  when the State designs roads that are unsafe, it typically gets held liable for the resulting injuries to the motorist. 

The State lost in this case, and the appellate court upheld the trial court's decision.  What is most troubling about the State's appeal, however, is that it cited no authority for one of the issues it took up on appeal:  the application of joint and several liability (each party is liable in full if the other party is unable to or does not pay).  The other troubling aspect of the tersely worded six-page opinion is the court's very quick and unrepentant application of the collateral source rule (a potentially liable party is not entitled to offset its liability with payments made to the victim by another party unrelated to the lawsuit, like an insurance company, or in this case, an employer). 

Has CalTrans learned its lesson yet?



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, April 16, 2006 at 23:25. Comments Closed (0) |



Page:  << Prev  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  48  49  50  51  52  53  54  55  56  57  58  59  60  61  62  63  64  65  66  67  68  69  70  71  72  73  74  75  76  77  78  79  80  81  82  83  84  85  86  87  88  89  90  91  92  93  94  95  96  97  98  99  100  101  102  103  104  105  106  107  108  109  110  111  112  113  114  115  116  117  118  119  120  121  122 123  124  125  126  127  128  129  130  131  132  133  134  135  136  137  138  139  140  141  142  143  144  145  146  147  148  149  150  151  152  153  154  155  156  157  158  159  160  161  162  163  164  165  166  167  168  169  170  171  172  173  174  175  176  177  178  179  180  181  182  183  184  185  186  187  188  189  190  191  192  193  194  195  196  197  198  199  200  201  202  203  204  205  206  207  208  209  210  211  212  213  214  215  216  217  218  219  220  221  222  223  224  225  226  227  228  229  230  231  232  233  234  235  236  237  238  239  240  241  242  243  244  245  246  247  248  249  250  251  252  253  254  255  Next >>

Back to top.