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Friday, October 26, 2007

Vampire clients can be draining

As a special extra for our blog readers, I am making the full-text of the editor's column from Monday's Minnesota Lawyer available on this site.

With a vampire as a client, your defense had better not be toothless

By Mark A. Cohen
Minnesota Lawyer/ Oct. 29, 2007

In the spirit (no pun intended) of the Halloween season, I have decided to explore a few of the legal issues faced by vampires and other undead clients.

Now, I know what you are thinking. They kill, they maim, they suck your blood out — so why should they be able to avail themselves of our legal system? That’s an easy one. Everyone is entitled to equal access to justice. To have it any other way would be, well, monstrous!

So you are working in your office late one night, and in walks (or flies) a vampire. He wants you to defend him against charges that he killed multiple individuals and sucked all of the blood out of them. So what do you do?

First of all, you might want to get a Cross (or Star of David or whatever) at the ready. As a backup plan, try ordering a garlic pizza for delivery. If you don’t need it to keep your client at bay, it will make a good snack later.

Assuming you take the case — and prudently invest in an iron-plated turtleneck shirt — what advice do you give your client? How about an insanity plea? I mean, he must have bats in the belfry, right?

If the jurisdiction had an old-style “irresistible impulse” defense, the court may just bite. After all, his insurmountable craving for blood is what led him to do the dastardly deed, isn’t it?
But it is more likely the jurisdiction would have some version of the M’Naughten rule, which requires a defendant to show that, at the time of the act, he:
• didn’t know the nature and quality of the act he was doing; or
• if he did know it, that he did not know what he was doing was wrong.
So sorry, but it appears that your client’s insanity defense under M’Naughten would be a loser.

Vampires generally know what they are doing when they suck someone’s blood. And they are aware of the wrongfulness of their acts — you know, being creatures of Hell and all.

The case might also get tried in federal court if the vampire’s string of killings took him over state lines. The federal insanity rule — which requires a defendant to show he didn’t appreciate the nature and quality or the wrongfulness of his acts — would, I’m afraid, lead to a similarly unsuccessful result.

Since the vampire drank the blood to avoid starving to death, he might think a necessity defense would work. Sorry, but necessity is unlikely to justify murder, whether you are a vampire or just looking to make a quick meal of an annoying fellow passenger after a plane crash in the Andes.

A “heat of passion” argument for second-degree murder is also unlikely to succeed given that vampires are cold-blooded and actually enjoy premeditating their killings.

So it appears that, despite your best efforts, your client is most likely going to be found guilty of multiple first-degree murders. (Being a vampire, he might not even get by cross-examination.)

But there is a silver lining. If he was charged in federal court or in a state with capital punishment, he may be sentenced to death. And we all know, try as they may, lethal injection, gas, electrocution, hanging or even a firing squad won’t hurt a vampire. And to kill him more than once would no doubt be found to be cruel and unusual punishment.

But what if your client is sentenced to life in prison? No problem! You forget that vampires are already dead! Since the vampire has no life left in him, you make a motion to get him released for time served.

The most problematic result will be if your client is sentenced to a term of years. In which case I certainly would not want to be his cellmate!

Let’s just say a frazzled prosecutor — realizing how much this case (pardon the expression) — sucks, decides to let your client cop a plea. Word gets around, and you soon find your office flooded with business from other “monsters” who hear about your win. Among the many potential clients seeking your expertise are:
• Frankenstein’s monster, who wants to know if he can bring a civil-rights action against the villagers who chased him with rocks and torches;
• a werewolf with a gripe against his landlord for adopting a “no pets” policy and then evicting him;
• a ghost who wants to recover her property from her lazy, no-good heirs;
• King Kong, looking for someone to defend him from the many civil suits spawned from his jaunt onto the Empire State Building;
• a group of zombies seeking back wages from their employer; and
• a mummy seeking child support.

Congratulations on developing a whole new practice niche area! May the frightening amount of business you generate allow you to enjoy all the creature comforts. And, oh yes, happy Halloween!

Mark A. Cohen is the editor-in-chief of Minnesota Lawyer. He can be reached at (612) 584-1531 or by e-mail at mark.cohen@minnlawyer.com.

Larry Craig's Statement of the Case

Idaho Senator Larry Craig's statement of the case in his appeal from the denial of his motion to withdraw his guilty plea to a disorderly conduct charge is available here.

A Web of isolation

The Minnesota State Bar Association's Life & Law Committee is having a continuing legal education program on Nov. 7 on "Avoiding Isolation." (Click here for details.) I thought is sounded like a good idea for lawyers to get together and talk about isolation, but then I noticed it is a webcast. I am sure its a worthy program, but I can't be the only one who finds the fact that an isolation CLE is a webcast a bit ironic, can I?

Insurance not available for doctor who stole a wife

A South Dakota doctor who is being sued for stealing another man’s wife has been unsuccessful in his attempt to get his insurance company to pay for it.

The case, which went all the way to the state’s Supreme Court, involves a lawsuit brought by David Kalt against Dr. Thomas Harbert for alienation of affections after Kalt's wife, Peggy, went to work at a medical clinic and had an affair with Harbert.

Harbert sought coverage for the suit from State Farm Fire and Casualty Company under his personal liability insurance policy. The insurer fought the request.

The Supreme Court of Minnesota’s neighbor to the west said that the insurance policy does not cover the lawsuit because alienation of affections is an intentional harm and allowing insurance coverage is contrary to public policy.

Hummm … I guess it was worth a try anyway.

Nonetheless, I hope I’m not the only one who finds this whole thing a bit offensive. The claim for alienation of affection is rooted in the outdated idea that a woman is the property of her husband. South Dakota is one of only a handful of states that still allow people to bring such a claim. Fortunately, Minnesota legislators have seen fit to eliminate it.

Thursday, October 25, 2007

How not to avoid jury duty

Here's another story from Minnesota Lawyer's How Not to Avoid Jury Duty file.

An Internet-based company called The Excused Absence Network is peddling $25 jury duty excuse notes that appear to come from doctors or hospitals.

I doubt it's legal, it's definitely not ethical, and it probably doesn't work anyway. Yet the company's owners say they're just helping people do something they would have done anyway.

"Millions of Americans work dead-end jobs, and sometimes they just need a day off," says John Liddell, co-founder of the company. "People are going to lie anyway. How many people go visit their doctors every day when they're not sick because they just need a note?"

The website has been down this morning, but according to the Associated Press, a disclaimer on the site says the notes are "for entertainment purposes only."

Then again, the site also shows pictures of people sunbathing and playing golf after using the fabricated excuses. One testimonial reads: "I've managed to take the nine weeks off using these templates! It couldn't be any easier!"

I can't help but wonder: Is it easier for you to print a fake jury duty excuse, or for a judge to throw you in jail for contempt?

Wednesday, October 24, 2007

At Dorsey corporate symposium -- a whiff of tort reform with the torte

I was just at the Dorsey & Whitney Corporate Counsel Symposium at the City Center Marriott in downtown Minneapolis. (Or, perhaps I should just say Dorsey, since Whitney is getting pretty small on the firm's logo. Gotta' love branding.)

As usual, Dorsey put together quite a nice (and well-attended) program for corporate lawyers. Approximately 550 people -- which managing partner Marianne Short said was a record number -- attended a luncheon today at which former U.S. Treasury Secretary Robert Rubin (pictured) was the keynote speaker.

Rubin expressed a lot of trepidation about the precarious state of the economy, including concerns spawned by SIVs (complex investment vehicles), the mortgage meltdown, pressures from globalization, the trade imbalance, the weak dollar -- and enough other factors to scare you more than any Halloween ghost story. However, Rubin still believes we are probably heading for a soft landing rather than a crash, which was good news to the corporate lawyers munching on the chicken, ravioli and chocolate cake.

Immediately prior to the speech, I had the opportunity to participate in a round table discussion between Rubin and local journalists. During this session, Rubin cited as one threat to the national economy "an excess in litigation." My ears immediately perked up at this, and I asked Rubin to elaborate.

Rubin responded that, in his estimation, businesses have to spend too much time thinking about and fending off litigation. In other words, from a cost/ benefit standpoint, there is too much costly litigation without a concurrent benefit. In response to my follow-up question, he acknowledged that he is a proponent of tort reform, but punted as to what kind it should be, professing no special expertise on that issue.

Rubin was no doubt being modest. He is a very sharp guy with a law degree from Yale and a sterling financial-world pedigree that includes serving as chairman of Goldman Sachs. And, oh yes, he was Secretary of the U.S. Treasury! I am sure he has some idea of what kind of litigation he would like to see "reformed." In any case, when Rubin used the "excess in litigation" phrase in passing again during his keynote address, it went unchallenged during the subsequent Q&A. No doubt the words were greeted with receptive ears among the corporate lawyers gathered at the Dorsey symposium. It would have been another case entirely if Rubin had used the phrase before a group of trial lawyers from the Minnesota Association for Justice. Of course, most financial-world bigwigs wouldn't go into a meeting like that -- not without a very large stick, anyway.

Regardless of where you stand on tort reform, it would be hard to view that symposium as anything but a success. Kudos to Dorsey on another job well done.

Could OiNK raid lead to a new wave of downloader suits?

Has the war on terror been replaced by the war on downloading? Yesterday the British record industry, along with Interpol and Dutch authorities, raided the owner of OiNK, a bit-torrent file-sharing site with almost 200,000 members, many in the United States.

The news led to rampant speculation about what, if anything, OiNK members have to fear in terms of litigation and/or prosecution for copyright infringement.

In the vast majority of cases, it looks like the answer is “not much.” The secondary target of the raid was uploaders who “leaked” new CDs prior to their release date, and users who paid OiNK via pledge for speedier downloading times.

Some copyright attorneys feel OiNK users who did either of those two things should definitely be nervous.

Others feel an investigation of American users is unlikely unless the U.S. Attorney’s office chooses to get involved, because British and Dutch authorities are unlikely to turn over OiNK’s server logs (which would contain user information) to a private American company such as the Record Industry Association of America. (The RIAA has instigated most of the legal action against American downloaders.)

One would think attorney general nominee Michael Mukasey would have more important things on his mind than grandstanding on behalf of the record industry. But yesterday’s raid will almost certainly have the effect of discouraging downloading – a clear victory for the industry.

Tuesday, October 23, 2007

Sister Helen Prejean tells UST law students: 'Your profession is precious'

Sister Helen Prejean, author and anti-death penalty activist, spoke with passion and compassion to a group of University of St. Thomas School of Law students and faculty yesterday. She was presented with the Dignitatis Humanae Award, the law school's highest honor, for her work in recognizing the dignity of each individual. Her appearance was sponsored by the student chapter of the American Constitution Society and the law school.

Prejean, who was featured in the movie “Dead Man Walking,” discussed the ways in which she said the U.S. Supreme Court has facilitated executions. One example she cited was Strickland v. Washington, which she argued set unreasonable tests for determining ineffective assistance of counsel in capital cases. She also mentioned McClesky v. Kemp, which said that in order to prove racial bias in a capital case the defendant must prove discriminatory purpose, rejecting statistical evidence as a means of showing bias.

Prejean told the students: “You are in a precious profession. When you build your professional house, make sure there’s a room for poor people who have no one to speak for them. Our country needs you.” She also quoted the Trappist monk Thomas Merton: “When the world ends it will be legal.”

Monday, October 22, 2007

This scam seems like a Supervalu

I blogged last week about an Internet scam out there targeting attorneys. Minnesota Lawyer has a story on the scam today (subscriber password required).

It's easy to think no one at your firm would be dumb enough to fall for an e-mail scam. However, these folks can be pretty darn convincing, particularly if you routinely do business via e-mail. The most recent scam plays on lawyers' ethical duties, and takes full advantage of the bar's obligations to protect the interests of clients.

Anyone who thinks it can't happen at his or her firm should take a look at the article in Saturday's Star Tribune, "Supervalu sent $10 million to fraudulent bank accounts; money recovered." Fortunately for Supervalu, the company discovered it had been scammed before the money could be withdrawn from the banks to which it had been sent. Often the scammers use offshore banks, which fortunately for Supervalu did not happen in that case.

Pants suits, wedding flowers and the civil justice system

The Wall Street Journal blog has visited and revisited the story of the lawyer bride who is suing her florist for messing up the floral arrangement for her wedding. For those of you who missed the story in the news, the bride ordered $27,435 worth of flowers that, when they were delivered on her wedding day, she thought were not up to snuff. The peeved bride, alleging that the gaffe made her Big Day somewhat less than perfect, is seeking $400,000 in damages. One of the owners of the floral shop reportedly said: “My father used to tell me, ‘Don’t deal with lawyers.’ Maybe he was right, God bless his soul.”

Is it a case of a bridzilla running amok with the justice system or a legitimate grievance? Most of the posts on the original WSJ took the former view. The second WSJ item on the subject included excerpts of a comment received in favor of the bride, which led to 109 more comments, again mostly lashing out at the bride.

I have no idea of the relative merits of the bride's suit. However, when the story made the rounds on the Web as just "another frivolous lawsuit," it put me in mind of an Oct. 1 letter that Minnesota Association for Justice Executive Director Tim Adams wrote to the Star Tribune. The letter, penned as a response to an earlier commentary that the Strib published on the infamous "pants suit" against the Washington, DC., dry cleaners, decried the use of such suits to make it appear that our civil justice system doesn't work.

"Should this case have gone to court? No. But should going to court remain an option for those who are hurt through no fault of their own or to address wrongdoings by large corporations? Yes," Adams wrote. (Click here for the full text of the letter, which had the brief bit of celebrity of being the Strib's "letter of the day.")

If lawsuits like the pants suit are de rigeur in our justice system, why would that one silly case from Washington, D.C., have gotten so much press nationwide? The truth is that cases like that get so much attention not because they are common, but because they are so rare. They do occasionally happen though, and, no doubt, will continue to do so. As the lawyer bride discovered when her wedding flowers arrived, it's an imperfect world we live in. To quote the '80s rock ballad by Poison, "every rose has its thorn."