July 2nd, 2021

July 2nd: A Day to Declare Independence (And Celebrate Juries)

John Trumbull’s famous painting of the Declaration’s presentation hangs today in the Capitol Rotunda. It is owned by the citizens of the United States.

Each year I’ve used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown. It was signed two days later, and the date of signing (not voting) is memorialized on our Declaration of Independence.

John Adams thought that July 2nd was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write posts from years gone by about why the day is so important, for juries and otherwise. Here are a few of the pieces:

Power to the People (A Declaration of Independence)

Taking the Oath

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but please, please, please take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…
————
IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Ångest är en av de bidragande faktorerna som leder till erektil dysfunktion hos en frisk man. Den första upplevelsen av ED kan störa människans liv längre fram xn--bstapiller-q5a.se/kamagra/. Ångest kommer att stiga om och om igen, och erektil dysfunktion kommer sannolikt att återkomma. Detta leder till problem med människans efterföljande sexuella prestanda.

June 24th, 2021

Giuliani Suspended from Practicing Law

Racing around the interwebs today is the fact that New York has suspended Rudy Giuliani from practicing law. It’s an interim suspension — he hasn’t had a hearing yet. That is a tough thing to get in New York, but it happened for two reasons: The “uncontroverted claims of professional misconduct” and his “conduct immediately threatens the public interest.”

The fundamental issues regarding the claims of misconduct deal with his assertions of voter fraud in Pennsylvania, Georgia and Arizona. Over and over again he screamed fraud. The Appellate Division (First Department) wrote that Giuliani “communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020.”

The problem, of course, is that when lawyers make statements of fact in their capacity as a lawyer (not in their capacity as the Tooth Fairy or April Fool’s hoakxster) we are expected to have evidence to support our statements.

For the vast majority of people, lying about the election might well be protected First Amendment speech (unless with pitchforks and torches inland, storming the ~~castle~~ Capitol is urged. But that’s for another day.)

But the First Amendment doesn’t apply the same way if you are handed the privilege of representing people in court. You get something but there is a price for it. We are not free to lie to a court. The Court here wrote:

“It is long recognized that “speech by an attorney is subject to greater regulation than speech by others”. Unlike lay persons, an attorney is “a professional trained in the art of persuasion” . As officers of the court, attorneys are “an intimate and trusted and essential part of the machinery of justice”. In other words, they are perceived by the public to be in a position of knowledge, and therefore, “a crucial source of information and opinion.”

So while the lawyer hat is on, we play by different rules. We still have our First Amendment rights to spew nonsense if we like, just not while wearing that particular chapeau.

The Court then launches into a dizzying and well-documented array of particulars regarding his conduct in Pennsylvania, Georgia and Arizona. It’s a helluva list that includes his conduct at Four Seasons Total Landscaping, boxer Joe Frazier, claims of dead people voting, boxes or suitcases of ballots under desks and thousands of undocumented voters.

The Court painstakingly discusses how each was utterly and completely unsupported by evidence. One example of many is claiming that Pennsylvania mailed out 1.82M absentee ballots but that 2.59M were counted. This was false. In fact, 3.08M had been set out.

But being wrong is one thing. Repeating it after learning you were wrong is a different story. The Court wrote: “Notwithstanding the true facts, respondent repeatedly advanced false statements that there were 600,000 to 700,000 fabricated mail-in ballots, which were never sent to voters in advance of the election.”

The Court then proceeds to document numerous times he made the false statements after learning they were false. And continued making false claims even after the Attorney Grievance Committee brought this motion against him!

The Court went on to document his false claims that tens of thousands of dead people voted in Philadelphia.

In Georgia, Giuliani claimed to have “hundreds of pages of affidavits and declarations …that document gross irregularities…” including tens of thousands of underage voters. He produced nothing. Nada. Bupkus.

And in Arizona he made utterly unsubstantiated comments that tens of thousands of undocumented people had voted, despite the fact that “no statewide check on undocumented noncitizens had been performed.”

While the hearing hasn’t been held, Giuliani did have an opportunity to be heard on the interim suspension. There was a motion and he failed to come up with the goods. Likely because he doesn’t have them.

While many will write stories about this event it is the evidence part that really jumped off the page. Lawyers are supposed to have it when making claims. Giuliani claimed he had it. But he couldn’t produce it. And he did it with his lawyer hat on.

The second part of the decision deals with conduct threatening the public interest, because lying alone isn’t generally likely to lead to a suspension before a hearing (though the courts are pretty damn sensitive when it comes to client funds). One of the standards a court may use is “conduct immediately threatening the public interest.” (22 NYCRR 1240.9[a])

At this point the Court gets to the heart of the matter, that Giuliani was using his lawyer’s fedora to undermine both the practice of law and faith in the legal profession, and democracy itself, with his lies. And that includes the January 6 insurrection :

The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information (Matter of Nearing, 16 AD2d at 516). It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice (Ohralik v Ohio State Bar Assn, 436 US at 447). Where, as here, the false statements are being made by respondent, acting with the authority of being an attorney, and using his large megaphone, the harm is magnified. One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021 at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. The AGC contends that respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol. Respondent’s response is that no causal nexus can be shown between his conduct and those events. We need not decide any issue of “causal nexus” to understand that the falsehoods themselves cause harm. This event only emphasizes the larger point that the broad dissemination of false statements, casting doubt on the legitimacy of thousands of validly cast votes, is corrosive to the public’s trust in our most important democratic institutions.

The misrepresentations are so well documented that I am guessing that he will end out with a real suspension after a hearing, or disbarment. He will get another shot to defend, he will have competent counsel, but this will be an uphill battle for him. If he had evidence that he was merely mistaken, and not fabricating crap, he would have laid that on the table.

A final note, and I can’t help but think that this was a significant factor in deciding to suspend before a hearing: Giuliani claimed in his response that he is not a threat “because he has and will continue to exercise personal discipline to forbear from discussing these matters in public anymore. He also claims that because legal matters following the 2020 election have concluded, he will no longer be making any statements about the election under the authority of being an attorney.”

And yet, the Court found that, “Notwithstanding respondent’s claim that he has exercised self-restraint by not publicly commenting on the election, there are numerous instances demonstrating the opposite.”

The Court found, “We cannot rely on respondent’s representations that he will exercise restraint while these proceedings are pending.”

If there’s one thing a Grievance Committee really, really hates, it’s when lawyers lie to them.

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June 18th, 2021

Military Members Can Now Sue for Medical Malpractice

Lt. Rudolph Feres, parachuted into the darkness in the first hours of D-Day in 1944. He was killed later in a stateside barracks fire and his estate was barred from bringing suit. Photo via NY Times.

I wrote about the Feres Doctrine 18 months ago — that being the Supreme Court decision holding that military members couldn’t sue for medical malpractice, even if it occurred in non-combat situations.

I won’t repeat it all. Go read the link. The short version is this:

Did your stateside barracks burn down? Sorry Charlie. Or in this case, sorry Rudolph Feres. We’re you raped by your drill sergeant? Tough noogies. Your wife died from blood loss after child birth because of a looooong delay in giving blood? You get our condolences and we wish you well raising the kid as a single parent.
The Feres Doctrine prevents all suits, because the U.S. Supreme Court extended the prohibition on suits from “combatant activities” to all situations. It has long been an unfair abomination of the law.

In December 2019 that changed a bit that, when it allowed members to now sue for $100K, which was a silly limit for the reasons that I explained.

Now head to this next link: Because the Feres Doctrine is now gone. Military members can now sue, and the $100K limit is kaput, as we say in legalese. The change in law was inspired by yet another miscarriage of justice:

a provision in the 2020 National Defense Authorization Act, which sets policy and spending priorities for the Pentagon, ended the ban on suing for medical malpractice, after Sgt. 1st Class Richard Stayskal and his attorney, Natalie Khawan, petitioned lawmakers to change the law. The Feres ruling barred Stayskal from filing suit after military doctors during a routine physical in January 2017 failed to inform him of his lung cancer, which grew to be terminal.

Here’s the new rule, directly from the Federal Register:

A substantiated claim under $100,000 will be paid directly to the member or his/her estate by DoD. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Service members must present a claim that is received by DoD within two years after the claim accrues. However, the statute allowed Service members to file claims in 2020 for injuries that occurred in 2017.

May you and your loved ones have no need for it.

June 3rd, 2021

So Was the Statute of Limitations Tolled or Suspended?

When the pandemic struck, people stayed home. And when they stayed home, many couldn’t work. And if they could work, it wasn’t the same.

To say that had an impact on the justice system would be an understatement. Every conceivable time limit set forth in the law was now a problem. Such as many statutes of limitations. Civl law, criminal law, family law, no matter what.

Lawyers couldn’t safely go to their offices where the files were, and even if they were backed up in the cloud and accessible at home, couldn’t meet with clients, couldn’t investigate scenes, couldn’t get process servers to serve process. This was obvious to anyone with functioning neurons.

So on March 20, 2020, Gov. Andrew Cuomo issued Executive Order 202.8 to suspend the many statutes of limitations for 30 days. He has that authority under Executive Law § 29-a. Nine other 30-day orders followed regarding the suspension. Except for those times he referred to this as a toll. This was his wording on the first order:

“In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.”

On October 4th, however, he specially called it a toll in Exec. Order 202.67.

Is there a difference between a suspension and a toll? As the late Professor David Siegel used to say, “You never want to be the test case.” Let some other poor slob carry that water to the appellate courts. Be conservative.

But ultimately, you need to know. Why? Because as Suffolk County Justice Thomas Whalen argued in the New York Law Journal two days after Gov. Cuomo called it a toll, the Executive Law grants permission to suspend and not toll, and there is a difference: A suspension prevents the statute of limitations from expiring until the suspension is lifted. Thus, if it would expire during the course of suspension, then it expires on the day the suspension is lifted.

A toll, by contrast, stops the counting of days dead in its tracks. If a toll lasts 42 days, they you add 42 days to the date the statute of limitations would have otherwise expired.

So. Big difference. And one that I addressed here back on October 6th with an update for Justice Whalen’s opinion.

The argument that Justice Whalen made was that Executive Law § 29-a only gave permission to the governor to suspend, not to toll, and that tolling exceeded that authority.

Executive Law § 29-a(2)(d) provides that an Executive Order “may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions.”

The issue came to a head yesterday in Brash v. Richards, where the time time to file a Notice of Appeal was blown. The statute calls for filing this within 30 days of being served with it. That took place on October 2, 2020. Then the Governor lifted the suspension/toll on November 3rd. The Notice of Appeal was then filed November 10th, beyond the 30 day limit, requiring the lawyer to argue this was a permissible toll and not a suspension.

Again, it sucks to be a test case.

The court held that this was a toll, notwithstanding the lack of clarity in the Governor’s orders by referring to it sometimes as a suspension and other times as a toll. Why? Because he has the power not only to suspend, but also to alter or modify statutes. The 30-day time period to file a Notice of Appeal started to run, therefore, on November 3rd, and filing it on November 10th was well within the 30 days.

So, there you have it. The Executive Orders resulted in a tolling of the statutes of limitations from March 20 until it ended on November 3, 2020. A period of 228 days if my my quick Google calculation is correct.

Unless, of course, a different appellate court in New York rules otherwise or the Court of Appeals reverses.

It sucks to be a test case.

April 29th, 2021

Stupid Lawyer Tricks – Insurrection Edition

Screen grab from NBC News a moment before Babbitt was shot

Ashli Babbitt was shot dead on January 6th while crashing through the Capitol in an attempt to stop electoral votes from being counted. Now her Estate wants to sue the Capitol Police and the (as yet unnamed) officer for wrongful death.

This is, perhaps, one of the dumber ideas I have heard. Sue the very people charged with defending the republic while you are part of a crowd trying to violently overthrow it? Seriously?

I get phone calls with some frequency about bad cases. I wrote several years ago that the most important word for a personal injury lawyer is “no.” That hasn’t changed.

And bringing a wrongful death suit for the passing of a child — regardless of the context — is fraught with more than the usual emotion. The worst are those that come in the context of suicide, and the question presented is why a doctor did not render the proper treatment in the days/weeks/months before.

And the one thing that must be absolutely, 100% crystal clear is this: The client will never be happy. Never. Ever. It is impossible if a child was lost.

And now we add in a case that can’t possibly be won before a court or jury. Will the lawyers be doing it solely for the publicity? I’ve probably known hundreds of personal injury lawyers here in New York. I can’t think of one that would bring such a suit.

Worse yet for the family is that the Babbit Estate may face a counterclaim for intentional infliction of emotional distress if the officer who shot her has suffered as a result. Few would be surprised if he had post-traumatic stress syndrome.

Such cases are very difficult to win because of the exceptionally high bar that needs to be cleared to get there. But the (New York) rule is that it must be:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress” (Restatement [Second] of Torts § 46 [1] [1965]).”

In fact, as of 1993, the standard was so high that the Court of Appeals wrote (Howell v. NY Post) “of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous.”

The Court of Appeals in NY wrote that “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Assuming the same standard applies wherever suit ends up being brought, would a violent insurrection satisfy that?

The Capitol Police will never settle. If the suit survives a motion to dismiss or motion for summary judgment because of disputed facts, they will lose at trial.

This can only end badly for the family of Ashli Babbitt. There is no other possible ending.

And the Estate (to the extent it has any assets) could be on the hook for damages to the officer who shot her. Just because a family wants to sue does not mean a lawyer should enable such destructive conduct.