GPS Tattle Tales

I’ve blogged before about electronic discovery in the context of divorce cases .  Cell phones have been used to track parents in cases involving the disappearance of children.  Automobile mounted GPS devices, which are less ubiquitous but getting more common every day, are also being used to pinpoint a person’s exact location at a particular time after the fact. In researching this post, I found a Yahoo group,, devoted to GPS forensics and a Forensicswiki article.  Here’s an article from the Associated Press about how prosecutors are using histories from dash mounted GPS units to track the suspect’s movements at a particular time.  Detectives can extract histories of map searches and destinations entered into the GPS.  Some units have a “track back” feature that shows exactly where the unit was at a particular time. In a page from James Bond, the police have used GPS trackers hidden on suspect’s vehicles to track them.

If you’ve ever seen “Goodfella’s”, you may recall a paranoid Henry Hill driving around town while he watches for helicopters overhead that he believes are tracking him. Now all the FBI would do is stick a small GPS device on Henry’s bumper.  Agents could track him from the office via computer.  Any agents actually keeping tabs on the suspect would only need to be within a few blocks. Pretty amazing.

Blogger Nathan Smith
speculates that GPS could be used to control the post-release location of convicted criminals.  That is, as a condition of probation, child predators might have to wear a GPS that would alert law enforcement when they go near playgrounds, schools, daycares, or other likely locations for children.  DUI offenders might be barred from liquor stores and bars or a GPS in their car could even be used to notify law enforcement of “excessive weaving” or other erratic driving that might indicate drunkeness. Big Brother really would be watching you.

Of course, I don’t practice criminal law. So what does this have to do with civil cases?  This type of evidence may already be in use for divorce cases and the like.  I sometimes handle cases involving construction.  Often a bone of contention will be how often the contractor was on the job site.  The owner will say the construction was delayed because the contractor was “never there.”  The contractor will swear he was there almost every day, but it was always while the owner wasn’t present. If the contractor’s vehicle is GPS equipped and if it stores a long enough history, then it might be used to prove exactly how often the contractor was actually at the job site.  Likewise, an employer might use GPS to determine if an employee was slacking off. This kind of evidence could be used in any case where location is a material issue and disputed. 

The fact that your GPS keeps information such as your home and work addresses may be a problem even if you’re never involved in a lawsuit.  According to ConsumerTech, personal information may be available with the right tools even if you’ve reset the device to its factory original state.

All rights reserved:  Harry Thomas Hackney, P.A., 2008

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Telephone and Fax Status

In keeping with the idea of using this blog not only to enlighten people about legal issues of interest but also to inform clients, I’m afraid that the office telephone, fax, and Internet lines are all out of service today, which is August 22, 2008.  The voicemail, which is provided through the telephone company, continues to work so you can leave voicemail messages.  I can still access the voicemail from my cell phone.  So if you call, please do leave a message.

Are You Really In Good Hands If Your House Is Flooded?

Tropical Storm Fay has brought a deluge to Lake County.  The local Books-A-Million is sold out of “Ark Building for Dummies.”  Unfortunately, this is no laughing matter for the many Floridians whose homes are flooded by rising waters.  Most homeowner’s insurance policies do not cover flooding caused by rising water.  They only cover wind driven water damage.  You need “flood insurance” from the National Flood Insurance Program to cover damage caused by rising waters.  Some private insurers offer flood coverage for an additional premium, but most don’t. The good news is that higher hurricane deductibles won’t apply because Fay never became a hurricane.  For more details, I suggest that you read this very well done article from the “Orlando Sentintel”.

The question of wind driven water versus rising waters can be fertile ground for litigation.  Although with Fay, it may be very clear that most of the flooding is from rising water.  If you think your claim has been unfairly denied, you may wish to consult one of the many lawyers who handle insurance claims and have experience in this area.  Be forewarned though, courts will enforce insurance policies as written, as many Florida and New Orleans homeowners have learned.

Jury System Works, Again

The jury ruled in favor of Victoria Osteen and against Sharon Brown, proving once again that not all juries are out of control.  As I stated in my previous post, when you look at the facts closely, you’ll find, most of the time though not always, that there are reasons for the so-called run away verdict.  The fact is I’ve seen many meritorious cases where the plaintiff is undercompensated or even loses. Lawyers don’t call going to trial “rolling the dice” for nothing.  The system is not perfect. It is just the best we have.

The Associated Press ran the following quote:

The jury’s foreman, Gilles Labbe, said he and other jurors believed what happened on the plane was only a minor dispute between a passenger and one or more of the flight attendants.

‘My personal point of view (the lawsuit) was a complete waste of time because the incident didn’t rise to any kind of level. I fly all the time. I’ve seen a lot worse than that happen on airplanes.’

I commend the Osteens for not knuckling under and taking the easy way out. It must be nice to be able to well afford the cost of a good defense against this sort of suit. That is not always the case. But then again, few lawsuits seem quite as clear cut as this one. Although the Osteens could still have lost on any given day, the evidence did seem to favor them. This suit does show that those who are looking to cash in through a lawsuit cannot always depend on the lawsuit lottery.  It also shows that you cannot count on the embarassment factor of your accusations causing the other side to pay you off.

You’re Mean And You’re Rich So I Want Money And Lots Of It

I generally don’t comment on lawsuits with which I am not familiar, especially if my only knowledge of them is from the news.   I was grossly misquoted the few times I have been involved with the press.  When I have witnessed a portion of a trial and then read it about later in the newspaper it seemed as if the reporter and I were in two different courtrooms.  I take press reports of legal matters with a huge helping of salt.  Also many of the lawsuits that I have heard described as “frivolous” were anything but so I don’t take that term lightly either.  My favorite example of a lawsuit that people like to claim is frivolous is the McDonald’s scalding coffee case. The coffee in question was unfit for human consumption as served. However, I have to comment on the case of Sharon Brown versus Victoria Osteen.

Ms. Brown is a Continental Airlines flight attendant. She encountered Mrs. Osteen on a flight.  She claims that Victoria Osteen, who is the wife of pop mega-preacher and author Joel Osteen, verbally and physically assaulted her when a spill wasn’t cleaned up fast enough.  Specifically, she claims that Mrs. Osteen “yelled and screamed”, pushed her against the bathroom door, and elbowed her in the left breast as she attempted to force her way into the airplane cockpit.  In other words, she claims that Ms. Osteen was not very nice to her and was mean.  As a result she claims to have suffered a loss of faith, anxiety, and hemorrhoids (no joke, hemorrhoids!).  Her version of events is supported by fellow flight attendant, Maria Johnson.  For her part, Mrs. Osteen denies she did any of this.  Mrs. Osteen’s version is supported by husband Joel, three first class passengers and the captain.  Basically, the passengers and captain all deny hearing or seeing anything on the flight like the altercation Ms. Brown describes.  On cross examination, Ms. Brown admitted that no physical injuries ever manifested themselves and that she delayed in seeking psychological treatment.  (She probably delayed treatment just long enough to find out who Victoria Osteen was and what she was worth.)

By the way, Ms. Brown also claimed to have had a similar incident with Claudia Hall in 1995, which Ms. Hall denies.  Ms. Hall testified that she lightly touched Ms. Brown on the arm and that she flipped out and accused her of shoving her against a bathroom door.  Ms. Hall, who was broke at the time, was never sued.  Unfortunately, character evidence is usually inadmissible to prove someone acted in conformity with their character or that the alleged conduct is not in conformity with their character.  That’s too bad.  Because cases like these sometimes call out for that kind of evidence.  I find that people often act in conformity with their character. If you have a habit of getting involved in altercations with people who don’t share that habit, then maybe the altercations aren’t being caused by everyone else.

Of course, Ms. Brown’s hurt feelings can be assuaged.  Apparently, all she needs to feel much better is $405,000.00,  She was demanding full disclosure of the Osteens net worth so she could claim ten percent (10%) of it as “punitive damages.”

Let’s give Ms. Brown the benefit of the doubt for a minute.  Let’s assume everything she has claimed Mrs. Osteen did to her is the truth.  So?  Somebody was mean to you. Get over it!  Get on with your life!  Bringing a minor altercation like this, where there was no physical injury, into court is a monumental waste of time.  It certainly isn’t worth $405,000.00.  I suggest that it wouldn’t be in court if Mrs. Osteen wasn’t a wealthy public figure.  And do we want someone with this thin a skin working with the traveling public?  These days the traveling public tends to be irate because they’re tired of being treated like dirt.

Florida law does allow recovery for hurt feelings.  The cause of action is called “intentional infliction of emotional distress.” However, it requires conduct that is intended to cause emotional distress and is so extreme that it would cause the average person to exclaim “that’s outrageous!”  Merely being rude is not enough.  Unlike most torts the judge can apply that standard as a matter of law on a motion to dismiss based on the conduct alleged.  Consequently, most of the case law in this area is cases that have been dismissed or where summary judgment has been granted because the alleged conduct was not sufficiently outrageous.  The trial court is generally upheld.  These types of cases can be very hard to bring, as they should be.

I Vant That In Blood But Vith A Peppercorn!

Here’s an interesting article about a promise written in blood and Korean.  The dramatic touch of writing the promise in blood did nothing to enhance the enforceability of the promise.  The trial court ruled that there was no consideration for the promise to reimburse the other party’s investment losses.  Consideration is required for a validly enforceable contract. That is, each side must exchange something of value in exchange for the promises of the other.  However, the legal maxim is that a peppercorn can be adequate consideration, which is a colorful way of saying that very little consideration is required.  The case is now on appeal.

The Law Religion Culture Review blog has posted the entire verbatim contents of the appellate brief online.  The gist of the argument is that the consideration from the party who lost money was the “forbearance of suit.” That is, he could have filed suit immediately but agreed not to due to the promise of repayment.  Forbearance of suit is also recognized as adequate consideration for a contract in Florida.

The lesson here is to skip the dramatics and write your agreements in ink not blood.  Whether your agreement is enforceable will ultimately depend on whether you remembered the peppercorn and not whether you gave an ounce of blood in the drafting.

Judges Aren’t the Lone Ranger

Some clients naively assume that judges are appointed to protect them and have broad powers to do whatever they feel is “fair” and “just.”  Of course, what is “fair” and “just” in the eyes of the client is whatever relief they feel they need.  However, it is not the role of the judge to dispense some sort of rough justice according to what they deem is fair.  They are as constrained by the law as anyone else. This is where we get the saying, “We are a nation of laws and not of men.”

It is not unusual for a judge to feel badly as she executes her duties, but a good judge does her duty as she believes the law requires.  The judge is concerned with the law and not necessarily with the negative consequences of the application of the law to a particular individual. A judge cannot save you from a bad bargain and is expressly prohibited from rewriting a contract for the parties even if it unfair to one of them.  The judge can only grant those remedies that are allowed by law in a particular case. There are usually other judges above them in the hierarchy who will reverse their decisions if they believe they overstepped their bounds or misapplied the law.  Judges hate to be reversed.

I thought about this today because a client expressed the vain hope that the judge would rewrite his agreement to grant more favorable terms to him.  The judge could not possibly do this.  I also came across a sad case involving a Milwaukee man who was losing his $240,000.00 home due to a $2,600.00 zoning code violation.  He had illegally parked a vehicle with expired tags in the driveway of the home.  Unfortunately, the gentleman had numerous personal and mental issues and the situation just snowballed.  I got the feeling the judge felt bad about it when he found out, but as he said,

The city was entitled to a judgment,” [Judge Richard] Sankovitz told Public Investigator on Thursday. “There hadn’t been an answer to the complaint.

The moral of this story?  You’ve got to look out for yourself first.  Don’t count on a judge to save you later.  He may not be able to do so.  Judges aren’t the Lone Ranger riding the prairie in search of wrongs to right.  They’re people constrained by the law just like everyone else.