December 19th, 2013

Sarah Palin and Other Morons, on the Loose (Duck Dynasty, 1st Amendment Edition)

first-amendment-719591All over the news right now is the story of Duck Dynasty patriach Phil Robertson saying nasty things about gays and others and then having A&E, the network that puts on the show, suspend him.

There are plenty of others writing about Robertson and his views, so I feel no particular reason to yell “me too!” I don’t like writing those kinds of posts.

I write instead about the predictable fallout of the usual screaming matches that come up whenever a social issue rears its head, the old left v. right kind of thing, though perhaps when it comes to gay rights it’s more accurate to speak of those who favor greater government intervention against those who want the government to keep its nose out of the citizenry’s private business.

In any event, Sarah Palin, in her wisdom, sees this as a “free speech” matter:


And cable talk show legal analyst Arthur Aidalawhen the issue was being “debated” on Fox News’s Megyn Kelly show:

Arthur Aidala and Monica Crowley vehemently disagreed, and all three got in a heated back-and-forth about the free speech issues here. Aidala cried, “There’s something called the First Amendment!”

Who is Arthur Aidala? A criminal defense lawyer.

Now I understand when those who are less educated misunderstand the First Amendment. I don’t criticize too heavily when there are folks who have not had the benefits I’ve had of a good education, though this is the kind of thing anyone with a high school education ought to have a grasp of.

But if you ran for Vice President of the United States, or if you are an attorney volunteering to be the talking head legal analyst on a cable show, then you really can’t claim ignorance as an excuse. You ought to know that the issue of free speech applies to the government, not a private cable television channel. The First Amendment is pretty clear on that, and I added a touch of emphasis for their benefit:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

To be clear: Robertson has every right to say idiotic things. A&E has every right to say it doesn’t want someone who spouts idiotic things on its show. (At least for awhile, until the tug of money and ratings makes them say all is forgiven.)

I have a right to publish idiotic comments. Palin and Aidala have the right to spout stupidity.

But the government isn’t involved in any of this, because it has’t tried to make a law that prohibits any of us saying our piece. Bellyache all you want, but this isn’t a free speech issue.

To quote from the movie Billy Madisonregarding those trying to raise the banner of free speech:

Mr. Madison, what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.


March 19th, 2010

Plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question

This case came down in February while I was on vacation and deals with several interesting issues relating to auto accidents, only one of which I’ll discuss here.

In a motor vehicle there are often multiple causes. In this case, it was a red light at issue. A truck and motorcyle collided. The plaintiff-motorcyclist moved for summary judgment, and the court denied it because he might have also been negligent.

This was error and the Appellate Division (First Department) reversed in Tselebis v. Ryder Truck Rental, holding that when a plaintiff moves for summary judgment, s/he is “entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question.”

In other words, it is not necessary to establish defendants’ negligence as the sole proximate cause of injuries in order to make out a prima facie case of negligence. To establish a prima facie case, a plaintiff “must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury.”

Big difference. If a jury finds that the plaintiff was also at fault, then an apportionment can be made, but that does not preclude summary judgment.

Also in this decision is discussion of the requisite elements of the Noseworthy Doctrine (lower standard of proof due to death, or incapacity that prevents recollection of events) and culpability for entering an intersection against the red light.

For more discussion of those, head to Lou and the Law.


March 17th, 2010

City of NY Gets Whacked Again With Sanctions By Appellate Court

The City of New York is on a roll. But not the kind they like. After years of favorable treatment by the courts in the face of repeated discovery delays, it seems as though the appellate courts have had enough of they city’s dilatory tactics and refusal to obey court orders.

In Elias v. City of New York, the Appellate Division (First Department) hit the city yesterday for $7,500 in sanctions. According to plaintiff’s counsel, Charles Gershbaum, the city blew through five different discovery orders in this personal injury matter. Rather than simply accept the lower court’s new order (a sixth order, to comply with five old ones), an exasperated Gershbaum took the matter up to the appellate court, on the legal theory that enough is enough.

And the First Department responded by modifying the lower court order to smack down the city again.

It was just three months ago that 18 of the 20 appellate judges of this same appellate court took the City’s Corporation Counsel, Michael Cardozo, to the woodshed. They called Cardozo “imperious” and “insulting” for having published a top 10 list of recommendations on how the courts could be made more efficient and asked that “Judges must be made more accountable.” He had a variety of “performance measures” in mind.

Well, it seems that the appellate courts have performance measures in mind too, notably the lax performance of the City’s lawyers. The irony of Cardozo’s complaint was not lost on anyone.

It was only one day after Cardozo tried to spank the judiciary last December that the Second Department hit back, with its decision in Byam v. City of New York where the city’s answer was struck due to “willful and contumacious conduct” that the court inferred “from their repeated failures, over an extended period of time, to comply with the discovery orders, together with the inadequate, inconsistent, and unsupported excuses for those failures to disclose,” for a case going back to 1997.

While the decision yesterday in Elias was brief, it brought back echoes of the First Department’s letter of response to Cardozo, where the justices wrote that:

A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence.

That letter had noted that, “[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions.”

The lower court judges that handle the city parts, who hate to get reversed, are no doubt taking notice of the substantial change in tone from our appellate courts.