Bashing the U.S. legal system is a popular pastime. However, I often see news from other countries that confirms that the U.S. really hasn’t got a lock on silly legalism. Here’s one from Canada where a 12 year old child of divorced parents got her court appointed lawyer to petition the court to overturn her father’s decision to ground her. Her lawyer should have told her to get a life because little girls don’t always get what they want. Instead this lawyer wasted the court’s time by filing the petition. Worse yet, the judge granted the petition and overturned the grounding. Guess that kid knows whose the boss now and it isn’t her father.
As a trial attorney, I often encounter clients who want me to do anything I can to embarrass their opponent whether relevant to the case or not. They seem to believe that embarrassing the other side is the key to winning. In this case, the Fifth District Court of Appeal admonishes defense counsel for cross-examining on embarrassing but irrelevant matters. The Fifth DCA reluctantly affirms the jury’s verdict because counsel for the plaintiff failed to make timely objections to the “unprofessional” conduct of defense counsel. The Fifth DCA wrote the opinion soley for the purpose of admonishing defense counsel for his conduct and to put other lawyers on notice.
The moral of this story is that there are limits on what your lawyer can do to embarrass the opposition. If your lawyer brings up matters that are too prejudicial, a favorable verdict may be reversed so be careful what you ask for. If your lawyer refuses to bring up matters solely to prejudice and embarrass the opposing party, she might just know what she is doing.
The 9th Circuit Court of Appeals, which is located in San Francisco, has ruled that law enforcement needs a probable cause warrant to read copies of your electronic messages that have been stored less than 180 days even if you have already downloaded or read them. The ruling also prohibits employers from getting the contents of employee emails or text messages from the service provider without employee consent. See, Quon v. Arch Wireless Quon was an Ontario, California Police Officer who was provided with a two way alphanumeric pager by the Ontario Police Department. He used it to send both work and personal messages. Quon sued Arch for violation of the Stored Communications Act and the Ontario Police Department for violation of the Fourth Amendment. The 9th Circuit ruled that Arch did violate the Act and that the Police Department violated the Fourth Amendment.
The Electronic Frontier Foundation provides an analysis of the opinion on the Deeplinks Blog. Although many headlines would have you believe that this is a broad ranging opinion that prohibits employers from reading text messages in general, the opinion may be more limited than that. Quon was a civil service employee working for a government agency that was also a law enforcement agency. The Ontario Police Department is subject to the Fourth Amendment, but most employers are not. The Fourth Amendment limits government not individuals. However, there may be other limits on the ability of individuals to snoop. The 9th Circuit is also famously liberal so it remains to be seen how other courts will interpret the Stored Communications Act as it applies to employers seeking information transmitted via devices owned and paid for by the employer.
Ironically, the 9th Circuit is the appellate court on which Judge Kozinski, who got into some trouble due to a personal web page, sits.
When I established this blog, one of the things I said I would do is inform people of office events. This is my first, but not my last, post about office news and scheduling. The week of June 23 to June 27, 2008 Linda will be out of the office. I have a trial Tuesday so I’ll be preparing all day Monday and trying the case all day Tuesday. I then have various hearings and depositions the rest of the week. Consequently, no one will be answering the phone this week. If you call, please leave a message and I’ll call you back. My office hours will also be unpredictable. Thankfully Linda returns on June 30.
I was listening to a podcast of a speech recently when the speaker said something such as “Lawyers always say, get it in writing because then there is no doubt what you meant. You can’t argue with what’s written.” It was like nails on a chalkboard to my ear. The naivete! Only a non-lawyer could say that getting an agreement in writing ends all disputes.
You should get any important agreement in writing. Without a written agreement or understanding, there can be wild variations and disagreements as to what was said or agreed upon. However, getting it in writing won’t eliminate all disputes. A written agreement will certainly reduce the chance of a dispute and eliminate many areas of dispute, but no agreement is ever perfect.
Even with a writing, disputes can arise in a variety of ways. Unforeseen circumstances or events can arise leading to a disagreement over whether and how the agreement covers that situation. A carefully drafted agreement may nevertheless contain language that is ambiguous in retrospect or in actual practice although it seemed clear at the time it was written. Problems can even arise when a document is overwritten in an effort to address every single potential contingency. A whole body of law deals with how contracts are to be interpreted. For example, it is a well recognized legal principle that ambiguities in writings are construed against the drafter of the writing. This body of law has developed because even written agreements aren’t always crystal clear and can require interpretation.
You must be careful not only to get it in writing, but to make sure that the writing is clear. Say what you mean and mean what you say. Merely getting it in writing alone is not always enough.
Judge Alex Kozinski, who is the Chief Judge of the Federal 9th Circuit Court of Appeals, found himself in the awkward position of occupying the limelight during a criminal obscenity trial due to materials on his website. Apparently appellate judges will sometimes preside over lower court criminal trials when their schedule allows. Thus Judge Kozinski came to preside over the criminal obscenity trial of adult film maker Ira Isaacs. Isaacs was charged with criminal obscenity for producing fetish films that featured bestiality and defecation. Someone tipped off the LA Times that there was “similar material” posted at http://alex.kozinski.com. (This website has since been made inaccessible.) The prosecution asked for a recess while they decided whether to seek his recusal on grounds of conflict of interest. Actual examples of the materials on the Judge’s website are available here. (Warning: Contains some NSFW images.)
The materials at issue were contained on a subdomain of the Judge’s website that only could be reached by typing the exact URL. It was not, however, password protected. In other words, you could only find the materials if you knew where to look, but if you knew the URL they were readily accessible. I haven’t seen any Ira Isaacs films so I don’t know what those images are like. But according to the video of a news report here, the Isaacs films are about as vile and disgusting as a film can get.
Ironically, Judge Kozinski is an advocate of the First Amendment and privacy rights. When he discovered that court administrators had placed pornography blocking filters on court computers, he led the effort to get the filters removed. Frankly, I’m much more upset by the idea that he defended the ability of government employees to use government computers to view pornography (probably on government time) than I am by the idea that he has some tastelessly “humorous” photos on his private website. I can’t see any reason for government employees to have access to porn at work, including salaried Federal judges.
The Judge’s website was maintained on his private PC and used no government resources. The Judge thought that his website was “private storage” and not publicly accessible, but the bottom line is that no one is immune from embarassing themselves online. There is always the risk that anything posted online can be found. The Judge could have saved himself a lot of embarassment by not posting potentially embarassing materials to a website. All he had to do was keep them offline.
I am pleased to announce that this blog can now be found through the Florida Lawyers Blog Watch, which was started by West Palm Beach attorney Ron Chapman and legal web marketing consultant Steve Matthews. The Florida Lawyers Blog Watch is an aggregation of the RSS feeds from Florida law related blawgs.