Ken Shigley has an interesting post listing some poll results that have been circulated in AAJ materials in recent days.
Justice Progarms – 2008
Former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley and I are sponsoring our annual "Justice Programs" seminars again this Fall. Here is the schedule for this two-day, fifteen-hour program.
First Day
8:00 – 8:30 Registration
8:30 – 10:15 Tort Law / Comparative Fault
10:15 – 10:30 Break
10:30 – 11:30 Dealing with Difficult Judges
11:30 – 12:15 U.S. Supreme Court Review
12:15 – 1:15 Lunch on your own
1:15 – 2:30 Tort Law / Comparative Fault (cont’d)
2:30 – 2:45 Break
2:45 – 4:15 Evidence in the Trenches
4:15 – 4:30 Break
4:30 – 5:45 Business Torts – The State of Tennessee’s Law
Back from Chicago
I have been in Chicago for the last four days, attending the Board meeting of the National Board of Trial Advocacy and spending time with my son , MIchael. We saw the Cubs beat the Astros Saturday afternoon and took in a street fair in Chinatown yesterday. It was a great trip.
I apologize for the problem with the links to the last few posts. I have brought the issue to the attention of my service provider and assume that it has been fixed.
“High – Low” Agreement Must Be Disclosed to Adversary
The highest court of New York has ruled that a "high-low" agreement must be disclosed to the judge and to non-settling defendants.
This is what the Court said:
To ensure that all parties to a litigation are treated fairly, we hold that whenever a plaintiff and a defendant enter into a high-low agreement in a multi-defendant action which requires the agreeing defendant to remain a party to the litigation, the parties must disclose the existence of that agreement and its terms to the court and the non-agreeing defendant(s). This result strikes a proper balance between this State’s public policy of encouraging the expeditious settlement of claims, and the need to ensure that all parties to a litigation are apprised of the true posture of the litigation so they may tailor their strategy accordingly. Disclosure provides a non-agreeing defendant a meaningful opportunity to place on the record how it intends to use the agreement at trial, if at all, and affords the trial court an opportunity to weigh the interests of all the parties in considering the extent to which an agreement may be utilized in that forum. Of course, the determinations as to what effect, if any, the existence of the agreement will have at trial, including whether such an agreement should be disclosed to the jury, are matters that lie within the sound discretion of the trial court.
Taxability of Damage Awards
The D.C. Circuit Court of Appeals has released an en banc opinion in Murphy v. Internal Revenue Service, No. 05-5139 (July 3, 2007).
The summary of the opinion as prepared by the Court: "Marrita Murphy brought this suit to recover income taxes she paid on the compensatory damages for emotional distress and loss of reputation she was awarded inan administrative action she brought against her former employer. Murphy contends that under § 104(a)(2) of the Internal Revenue Code (IRC), 26 U.S.C. § 104(a)(2), her award should have been excluded from her gross income because it was compensation received “on account of personal physical injuries or physical sickness.” She also maintains that, in any event, her award is not part of her gross income as defined by § 61 of the IRC, 26 U.S.C. § 61. Finally, she argues that taxing her award subjects her to an unapportioned direct tax in violation of Article I, Section 9 of the Constitution of the United States.
We reject Murphy’s argument in all aspects. We hold, first, that Murphy’s compensation was not “received … on account of personal physical injuries” excludable from gross income under §104(a)(2). Second, we conclude gross income as defined by § 61 includes compensatory damages for non-physical injuries. Third, we hold that a tax upon such damages is within the
Congress’s power to tax."
Don’t Do This
Put this is the "You ain’t gonna believe this" department.
A New Jersey firm admitted "that an associate — with two partners’ knowledge — asked a bank representative whether a client, Kennedy Funding Inc. of Hackensack, could purchase the personal mortgages of the attorney suing Kennedy Funding in four federal fraud cases. Such a purchase would have made Kennedy Funding, a commercial lender, the holder of the home and office mortgages of adversary Gregg Trautmann, who has a firm in Rockaway, N.J."
The judge handling court cases was not amused. Read more here.
More on Robert Bork
i wrote several weeks ago about the lawsuit Robert Bork filed against the Yale Club. I mentioned that the some issues I had with the suit, including the request for punitive damages.
Eric Turkewitz wrote a much better post than I. As a New York personal injury lawyer, he wrote what was wrong with the complaint filed on behalf of Judge Bork.
The original complaint has been amended, and it still does not pass muster in Eric’s mind. Here is his latest post that explains what was wrong with the original complaint and what the amended complaint missed.
Starburst Candy Lawsuit
You have undoubtedly heard about the lawsuit that was filed that claims that Starbursts are too chewy and caused an injury to a woman’s mouth.
The plaintiff’s lawyer is Brian Muawad from St. Clair Shores, Michigan. He and his brother hold themselves out as competent in " Personal Injury, Auto Accidents, Medical Malpractice, Slip and Fall , Worker’s Compensation, Business Litigation, Criminal Law, Real Estate, Business Transactions, Business Sales, Liquor License, Lemon Law, Credit Reporting Problems, and Other areas of Law." (There is no indication if by "other areas of the law" Brian includes mergers and acquisition, international tax, oil and gas, and entertainment law. ) He urges the public to "[c]all now for a free consultation to get the most value for your case." See his advertisement here (go to Page 12). I cannot find a website for their firm.
Brian is not listed as a lawyer http://www.martindale.com/ and therefore the rating of his ability by his peers is unknown. He is a member of the Arab American Bar Association but, despite his claimed ability to handle tort cases for plaintiffs his name does not appear as a member of ATLA (now AAJ) (at least of the date of publication of the 2006-07 membership directory). (To be sure, it only takes a law license and check to belong to AAJ. AAJ membership is not a sign of competence. AAJ membership is a sign that lawyer cares enough about his clients and tort practice that he will financially contribute to an organization dedicated to preserving the civil justice system and improving the competence of its members.) He is a member of the Michigan Bar Association but the names of members of the Michigan Trial Lawyers Association are not available to the public so I do not know if he is a member of that organization. If the MBA and the MTLA are like the TBA and TTLA one needs a law license and check to join. Once again, competence over and above the ability to get a law license is not required.
Court Imposes Duty to Aid Injured Man
You know the general rule: absent a special relationship, one person does not have a duty to come to the aid of another. You can see someone drowning, calling out for help, and simply walk by listening to your Ipod and taking a another lick of your Maggie Moo’s ice cream cone. These is true even if you are a world-champion swimmer trained in life-saving.
The Superior Court, Appellate Division, of New Jersey recently faced an issue of whether two passengers in a car had a duty to aid a motorcycle rider who had been hit by the intoxicated driver of their car who was either unwilling or unable to come to the motorcyclist’s aid. The three men stopped after the incident, saw the injured man, and left the scene without offering or calling for assistance. (The three had cell phones with them.) The driver’s car broke down shortly thereafter, and the passengers fled the scene leaving the driver behind waiting for his girlfriend to pick him up. The passengers told the driver not to tell anyone that they had been present. The motorcyclist was left on the road, was hit by a car and died.
The trial judge dismissed a case brought against the auto passenger’s by the administrator of the motorcyclist’s estate. The Appellate Division reversed, in a fascinating opinion that takes the reader back to Torts 101. A brief excerpt:
Photographs of “Minor” Crashes Admissible Without Expert Testimony
Walk into any courtroom in the state in any given week and there is a one-day trial underway in a soft tissue injury case. A defense lawyer is standing before the jury, waving a photograph of the plaintiff’s vehicle and saying "How can the plaintiff be hurt? The rear bumper of her car was barely dented!"
Can a defense lawyer do that? Can he or she argue that the plaintiff was not hurt because the property damage is minimal? Or does a defendant need expert testimony to make that argument? Indeed, does the defendant need expert testimony to even introduce the photos in such a case (assume no claim for property damage)? How are those photos relevant?
The New Jersey Supreme Court has just ruled that such photos are admissible and that it is permissable for defense counsel to make an argument like the one suggested above. Why?