Quote of the Day - Dad does get the most unusual Christmas cards from the penitentiary.
My Favorite Christmas Card
This time of year, my mailbox fills up with family Christmas and Hanukkah letters. I also get the politically correct "Seasons Greetings," which I have to admit I send out on occasion, even though I more enjoy receiving Christmas cards, since that's the holiday I celebrate. There are the ones with the beautiful pictures of snow scenes, small towns and the ubiquitous Kinkade drawings. But one type of card holds a special place for me.
As I reach the point where I've celebrated more Christmases than I would like to remember, I relish the cards I get from old friends, even if it is once a year. My father, a Congregational minister, used to rail privately at those members of his parish who came only at Christmas, but I used to think - and still do - that some is better than none.
When I was a small kid, I had the fortunate happenstance to be on Cape Cod in the summer of my twelfth year, building sand castles on the beach with my brothers and wearing my Boy Scout hooded sweatshirt.
Yes, sand castles and the summer beach is a long way from Christmas, but stick with me here.
Raycroft Beach in Dennis adjoins Massachusetts State Senator Bowers' summer cottage, a fact I was soon to learn in my twelfth year. Early in the morning Senator Bowers came over to the public beach, and asked me and my brothers if we were willing to cut the grass at his cottage for a small sum of money, which was more than acceptable to us given that we only had our $.25 allowance money in our pockets.
We went over to his cottage and got not only the keys to the garden shed with instructions to cut the grass, weed the lawn and flower beds and generally act as gardeners for the remaining weeks of the summer, but we also got a bit more. We got the key to his cottage (on the beach), along with his invitation to use it during the week while he and his family were in Boston, since they generally only came down on the weekends. Plus, we got a substantial advance for our yet-to-be-done work.
We proudly marched back several blocks to our inland cottage (actually, it belonged to my Dad's church secretary) to show our parents and tell them they could come down and use the "private home and the private beach."
If I remember correctly, my mother grabbed my ear and marched me and my brothers right back down to the Senator. She just couldn't believe he would trust us with an advance, keys to his cottage and such an open invitation. Senator Bowers assured her that all was in order, and responded to her "but, but" questions with a calm observation: he knew we were trustworthy since we were all Boy Scouts, as we readily confirmed when he first met us.
So assured, we were able to spend the rest of our vacation acting as gardeners and acting as specially invited guests of an obviously wealthy and prominent senator, who also turned out to be a lawyer. We became fast friends, especially with his near college-aged son, Larry, and got to ride to the Nantucket Yacht Club and Monomoy Island in his wooden Chris-craft boat.
It was a summer to remember.
Senator Bowers has since passed away but his son, Larry Bowers, and I still stay in touch some 40 years later. When I published How to Get Sued, I sent a copy to him since he - not surprisingly - became a lawyer in Boston, too. He's also one of the staunchest church leaders in the Old South Congregational Church.
It was his card that made my Christmas, but perhaps more so the handwritten greeting inside: "Hail to the legal writer, whom I knew back when he weeded lawns." He is a true friend.
Lawyer 2 Lawyer Internet Radio Mourns the Billable Hour
For almost 50 years, the billable hour has been the dominant feature of the legal profession. Coined by some as the "cockroach of the legal world," many argue that quality of time not quantity put into a client is how it should be.
Please join me and my fellow Law.com blogger Robert Ambrogi, as we welcome Attorney Stewart Weltman from the Weltman Law Firm, to discuss the status of the billable hour. We will talk about the supposed death of the billable hour, reaction from the legal community toward the billable hour and look ahead to see if the billable hour will rise or fall in 2009.
Click on the icon below and give a listen.
Does Mothers Day Tote Bag Giveaway Violate The Civil Rights Act?
The California Angels of Los Angeles And Anheim (or whatever their name is) Go To Court
Yes, I know it's been on the top of your mind, so let's get right to it.
Michael Cohn and a couple of his buddies went to a Mother's Day game on May 4, 2006, when the Angels played Detriot. Corinthian College sponsored a giveway tote bag in honor of Mother's Day. Due to the crowds at the gates, the Angels decided to give the bag away to any female over 18. They did not give the bag away to men, but did give it out to season ticket holders and the news media (male and female).
Mike and his buds asked twice for the tote bags and were refused. They left the game apparently suffering from emotional distress. Truthfully, they just left the game. I made up that last part about the emotional distress. Still, they were dissatisified enough to engage counsel, who promptly wrote a letter to complain.
In response, the Angels sent Mike, his buds and Mike's attorney four tote bags. Still not satisified, Mike sued.
Now you may be wondering how you could sue over a tote bag, so here's the long and short of it. Mike and his buds claimed discrimination based on sex and age under California's Unruh Civil Rights Act. Here's the text of the act: "'All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."
Cohn relied on two cases where gender based price differentials violated the Unruh Act -- free admissions for "ladies' night" violates Unruh Act and where a car wash discount for women violates Unruh Act. The Court wasn't buying Mike's complaint, however. Justice Kathleen O'Leary wrote, "For the Angels game, women were charged the same amount for entry as men were on the date in question. The tote bag simply represented a gift and did not discount the admission price."
"This important piece of legislation provides a safeguard against the many real harms that so often accompany discrimination," Judge O'Leary continued. "For this reason, it is imperative we not denigrate its power and efficacy by applying it to manufactured injuries such as those alleged by the plaintiff in this case."
"We see no reason to inhibit the Angels', or any other business's, ability to bestow gifts upon its customers. Individuals are free to give to whomever they like. Gift giving is not the same as usurping rights. We therefore find the Angels' tote bag giveaway did not violate the Unruh Act."
Mike then pointed out that the following year, the Angel's Mother's Day giveaway went to both men and women. Because the Angels changed their policy, Mike claimed he was the prevailing party and entitled to recover his attorneys fees and costs. Again, the Court didn't buy it. "We do not find the Angels' change in policy was for any reason other than avoiding another costly and irksome lawsuit and, therefore, find an attorney fees award improper," Justice O'Leary said, denying the claim.
In addition to their win over Mike and his buds, the Angels won over Detroit, 7-2. Well, the Angels really only won against Detroit. Mike sued Corinthian College, the tote-bag giveaway sponsor.
Mother's Day is safe in the world again. Well, at least in California.
Fitness Center Avoids Strict Liability Claim For Member Injured On Stepper
There are many kinds of liability and perhaps one you're most familiar with: negligence. Strict liability is another form of liability, and it arises when a manufacturer places a piece of equipment in the marketplace and knowing that it is to be used without inspection for defects, contains a defect that results in injury.
Courts have extended the reach of strict liability to retailer where they are part of the production and marketing of the piece of equipment. Strict liability also extends vertically down from manufacturers to others similarly involved in the vertical distribution of consumer goods, including wholesale and retail distributors who pass the product to the consumer.
So when Susan Ontiveros went to 24-hour Fitness and used a stair step machine, she thought 24-hour Fitness should be liable for her injury. Well, to put it more accurately, her personal injury lawyer thought so.
24-hour Fitness defended the case and said, "Hey, wait a minute here, we're a service provider. We're not passing the product down the line to the consumer. Our members use the equipment as a part of our overall fitness program, but we're not in the business of selling the equipment." Well, to put it more accurately would require a lot of legalese and boor you to death, so let's just leave it at that explanation.
Turns out, 24-hour Fitness was right. The Court of Appeal agreed, and granted judgment to the Fitness company, and denied Susan any recovery for her injury.
She'll just have to sue the manufacturer.
If You're Looking For A Gift For Your Favorite Lawyer, Visit Illegal Briefs
Some of the items on this gift website called Illegal Briefs may appeal to your naughty side, but it's unlikely you'll find a lump of coal. The t-shirts and other gifts include briefs and underwear, and some you'll probably blush at. If you're looking for a May It Please the Court gift, click on this link.
News Flash: Florida First Grader Robs Classmate Of $1.00 At Knifepoint
Lawyer Claims The Kids Were 'Just Playing'
Think about those headlines for a minute. There are so many incongruities there I don't know where to start. Just so you have all of the facts, you can check out this Orlando Sentinel story first. Let me remind you of just two other facts beyond those in the headline: (1) kitchen knife; and, (2) school bathroom.
There you have it.
Well, let me mention one more fact ratted out by a third kid who just happened to be nearby in what might qualify as blackmail uttered by the perp: "If you tell anyone, I'm going to bring my Dad's gun and shoot you."
Now that you've sat down and digested what seems impossible, let's look at what's going on here. There are three troubling aspects in this story: first, perhaps, there's the fact that a first-grader (that's a seven-year old, who may have been "held back" a year or just has a very early birthday), with a kitchen knife at school. When I was seven, I'm not even sure I knew what a knife was. Sure, my mother had them on the countertop when she cooked, but we hadn't even started whittling in Cub Scouts yet. Even when we did start, we got the "Dad talk" of never pointing it at someone else.
Let alone robbing another kid's milk money. In the school bathroom. And don't get fooled by the $1.00. That's just the start. As he gets older, he'll figure out how to add zeros. Just think Madoff and you can do the math.
Then there's the lawyer. Try to wrap your head around that attorney-client conversation. "Billy [not his real name], tell me what you did with the knife. Now, where did you spend the money?" Yes, certainly everyone's entitled to representation, but come on, a first-grader?
Not a high-priced, high-falutin' Philadelphia lawyer, as my grandfather would say.
That's a conversation between Mom, Dad, the kid and the principal, with an apology to the victim. And yes, the kid/robber (what else do you call him) gets expelled from school with a trip to the woodshed. Instead, the lawyer says the kid was just playing and shouldn't be expelled.
Where has our common sense gone?
Lawyer 2 Lawyer Internet Radio Discusses the Controversy Over Gardasil
You may have heard about the Gardasil vaccine for teenage girls, but you may not have heard about the serious side effects, allegedly affecting those young women. Merck, the company that manufactures the vaccine, the CDC and the FDA all say Gardasil is safe, effective, and important.
Please join me and my fellow Law.com blogger and co-host Bob Ambrogi, as we discuss this controversy and the litigation swirling around Gardasil with experts, Attorney Tom Girardi, nationally known plaintiff lawyer from the California firm, Girardi & Keese and Erin Brockovich, (yes the real Erin Brockovich from the movie by the same name), President of Brockovich Research & Consulting.
Wel take a look at the side effects in some cases, Gardasil litigation and focus in on the efforts to educate young women about this controversial vaccine. Click on the link below and give a listen.
Can You Avoid The Tripwire, Please?
It's getting to be that time of the year that we start to see the skiing and snowboarding lawsuits - especially with the dump of snow in our local California mountains these past couple of days. It's actually one of the things I love about California - especially after living in the Midwest and East coast.
Not the lawsuits (well, alright, I do enjoy the litigation) - I was referring to the location of the snow. California's got it all figured out. We manage to keep our snow where it belongs - in the mountains, not in the valleys where most of us live. We can choose to travel up into the mountains to enjoy the snow and then leave it there. On the East coast and in the Midwest, there's precious little you can do to avoid the snow when it falls other than to stay inside.
And yes, I am one of those people who call my family back East when the weather's balmy out here and they're stuck in a blizzard. It's the price I pay.
But back to the assumption of risk, which was where I was going before the Weather (or more accurately California's general lack of Weather [notice the capitalization]) got me sidetracked. Typically we get court decisions in the wintertime that regularly reinforce to skiers and snowboarders that they assume the risk of injury when they get on the slopes - as long as the ski resort didn't do anything to increase the chance they would get hurt.
Now that we've traveled all over the countryside, let's get to today's case, Luna v. Vela, which involved a front-yard volleyball court and a 13-year old kid who joined in the game. Fabian Luna joined the game about 15 minutes late, and when the ball bounced out of bounds, he ran after it, only to trip over the cord holding up the pole that held up the volleyball net. Fabian fractured his elbow, and sued Edilberto Vela, the homeowner and erector of the said volleyball net, pole and cord holding up the apparatus.
Does that last part sound lawyerly enough?
In any event, the appellate court overruled the trial court and held Vela responsible to pay for Luna's injuries, determining that Vela increased the risk of injury to the game's participants by installing the cord to hold up the pole that held up the net.
Call me silly, but without the cord holding up the pole, it's a little difficult to play the game. Without the cord, the net and pole would be on the ground. Certainly Vela could have poured concrete around the base of the pole to hold it up, but everytime I've seen a volleyball court up at a family outing, the cords and stakes hold up the two poles. Luna claimed the cord was "invisible" and that he didn't see it. The appellate court said the cord should have been marked with flags to make it more visible.
What's your ruling?