This is a story about the trouble with the obvious.
If you happen to be a convicted felon, like Joseph Dillard, (Dillard v. State, announced 12/12/12), and on probation, you probably don't want to have a picture on Facebook, captioned "Joe Dirty Deedse," showing you holding a shotgun. As the prosecutor argued, “here he was in the same room with this weapon at the time of his arrest and he was a convicted felon. Case closed.” And so the trial court revoked probation.
You'd think that would end it. But our system does not operate on the simple, on the obvious. It requires some amount of process. The written charge seeking to revoke probation made no mention of Joe Dirty Deedse; the Judge's oral order did not agree with the written order; on the whole, everyone appeared to be so focused on the obviousness of the outcome, no one bothered to document it correctly. Thus, the Court of Appeals sent it back down for further proceedings.
Look, I know everyone wants to see the Joe Dirty Deedse's of the world put in places where the risk of "them" harming "us" is minimized. But cases like this are what establish our basic freedoms. So cherish the process.
Thursday, December 13, 2012
Monday, December 3, 2012
Personal Injury Suits are NOT Out of Control. Ho Hum.
It's easy to say that personal injury suits are out of control. There, I just said it. But to make the point one way or another, you have to look at what is actually happening in the courts. So, when you come across a case involving injuries suffered in a major hotel's revolving door, it's worth a look. Tyree v. Westin Peachtree, decided last Friday, is just such a case. In Tyree, the plaintiff "was injured while exiting the Westin hotel when an automatic revolving door allegedly lurched forward, striking her and causing her to fall." In other words, the Plaintiff sued because she got hit by a door. That's the kind of things good, reliable, anecdotes are made of. The defendant set out three main points of defense: that there was an instruction to "please step forward," that the hotel did not have any superior knowledge about the doors, and that the doors were properly installed and maintained. The trial court entered rulings in favor of the defendant. Basically it ruled that the doors were opening and closing in plain sight, and that the plaintiff could not bring a claim. The court of appeals disagreed, finding that there was evidence that the hotel did not maintain or inspect the doors, and sent the case back to trial.
Wednesday, September 12, 2012
The State CANNOT take Property Without Due Process
It is good to know that the things we learned in middle school civics remain true. We learn, for example, that though the various levels of government do have the power to take property, that taking cannot happen without due process and compensation. On September 10, the Supreme Court of Georgia announced its decision in Adkins v. Cobb County, which made it clear just how important due process is.
Some background is needed. When a county wants to take property (for example, for the construction of a road), the county has to "declare" the taking. There is then a time period during which the property owner can respond and try to prevent the taking. The statutes are written in such a way to ensure that these matters are handled promptly, requiring a hearing within 60 days of the objection. In Adkins, the court did not schedule a hearing within the 60 day period and then ruled that because there was no hearing within the 60 day period, the property owner had lost its chance to protest.
The Supreme Court of Georgia overturned that ruling. (Yet, there was no headline about "the government" being restrained from a land grab.) In essence, the court ruled that the 60 day requirement is a requirement on the trial court, not a responsibility of the party having its property taken. If the trial court could not get its act together soon enough, it could set a hearing outside of the 60 days and still allow a challenge to the taking of property.
This is good news. Someone should note it.
Some background is needed. When a county wants to take property (for example, for the construction of a road), the county has to "declare" the taking. There is then a time period during which the property owner can respond and try to prevent the taking. The statutes are written in such a way to ensure that these matters are handled promptly, requiring a hearing within 60 days of the objection. In Adkins, the court did not schedule a hearing within the 60 day period and then ruled that because there was no hearing within the 60 day period, the property owner had lost its chance to protest.
The Supreme Court of Georgia overturned that ruling. (Yet, there was no headline about "the government" being restrained from a land grab.) In essence, the court ruled that the 60 day requirement is a requirement on the trial court, not a responsibility of the party having its property taken. If the trial court could not get its act together soon enough, it could set a hearing outside of the 60 days and still allow a challenge to the taking of property.
This is good news. Someone should note it.
The Supreme Court Doesn't Like the Way Lawyers do it on TV and in the Movies
Ask any practicing trial lawyer for thoughts on "fictional" trials -- the ones on TV and in the movies -- and you are likely to hear how unrealistic the portrayals are. Things, generally, don't happen that neatly, that cleanly, or that dramatically. There is a large amount of technical work going on during a trial that would bore an audience to tears if forced to sit through it.
But, every so often, a lawyer gets caught up in the moment and channels the inner Perry Mason. And when that happens, courts generally put a stop to it. On September 10, the Supreme Court of Georgia announced its decision in Stolte v. Fagan, which stressed the importance of controlling overly dramatic behavior from lawyers. This was a case of alleged dental malpractice. During closing argument, the dentist's lawyer referred to the dentist's reputation, years of practice, and various other things having nothing to do with the case, which were designed to create impermissible sympathy for the dentist. The patient's counsel objected, and the judge told the dentist's counsel to "move on." The dentist won.
The patient appealed, arguing (among other things, this was not the only issue in the case) that the judge did not do enough to alert the jury that the dentist made an impermissible argument. The dentist responded that the patient did not try hard enough to get the judge to act. The Supreme Court stated that "once an objection to improper argument has been sustained, the trial court is required to employ some corrective measure to remedy the harm resulting from the impropriety, even absent a specific request for such a measure." In other words, once a judge recognizes improper tactics, the judge has to make sure the jury understands that those tactics are improper, to make sure that the jury is not improperly influenced by the TV or movie like dramatics.
But, every so often, a lawyer gets caught up in the moment and channels the inner Perry Mason. And when that happens, courts generally put a stop to it. On September 10, the Supreme Court of Georgia announced its decision in Stolte v. Fagan, which stressed the importance of controlling overly dramatic behavior from lawyers. This was a case of alleged dental malpractice. During closing argument, the dentist's lawyer referred to the dentist's reputation, years of practice, and various other things having nothing to do with the case, which were designed to create impermissible sympathy for the dentist. The patient's counsel objected, and the judge told the dentist's counsel to "move on." The dentist won.
The patient appealed, arguing (among other things, this was not the only issue in the case) that the judge did not do enough to alert the jury that the dentist made an impermissible argument. The dentist responded that the patient did not try hard enough to get the judge to act. The Supreme Court stated that "once an objection to improper argument has been sustained, the trial court is required to employ some corrective measure to remedy the harm resulting from the impropriety, even absent a specific request for such a measure." In other words, once a judge recognizes improper tactics, the judge has to make sure the jury understands that those tactics are improper, to make sure that the jury is not improperly influenced by the TV or movie like dramatics.
Friday, September 7, 2012
Misreporting of Legal News: NFL Edition
No new cases Wednesday. Two new cases Thursday, both affirming criminal convictions.
So, just for fun, let's not look at the government, let's look at private legal process. A few months back the NFL (through its commissioner) suspended several New Orleans Saints players for taking part in a "bounty" arrangement, under which the players were alleged to have promised and received rewards from "pool" for injuring opposing players. The players appealed the suspensions, and, because of the agreement between the NFL and its players, the appeal was heard by a private arbitration panel.
Today it was announced that the penalties were overturned. Which is certainly true. One of the players tweeted ""Victory is mine!!!! -stewie griffin,"". The headline(s) all consistently played up the overturning of the suspensions.
It's a shame no one bothered to read the actual decision. (Take a look at http://assets.espn.go.com/pdf/2012/0907/Saints%20Summary%20Decision.pdf) The decision itself is not very favorable to the players, and, in fact, subjects them to more, and not less, discipline. By way of background, the players argued the commissioner had no right to suspend the players for what was basically a pay issue, because pay issues were governed by a "system arbitrator," and that therefore the commissioner had no authority to act. The commissioner argued that he had the right to punish "conduct detrimental" to the NFL and it was not a pay issue at all. The panel agreed with both sides, essentially. The panel decided that the commissioner can punish "conduct detrimental" but not compensation violations, and that the "system arbitrator" can punish pay violations but not "conduct detrimental." So what the panel decided was that because at least some of the punishment had to do with pay, and not conduct, the commissioner had to restate the penalty for just conduct, and the "system arbitrator" could impose a penalty for the pay violations.
These players may wake up in a couple of weeks and be serving two sentences, which add up to more than the one that got overturned.
Let's see how long it takes someone to point this out.
So, just for fun, let's not look at the government, let's look at private legal process. A few months back the NFL (through its commissioner) suspended several New Orleans Saints players for taking part in a "bounty" arrangement, under which the players were alleged to have promised and received rewards from "pool" for injuring opposing players. The players appealed the suspensions, and, because of the agreement between the NFL and its players, the appeal was heard by a private arbitration panel.
Today it was announced that the penalties were overturned. Which is certainly true. One of the players tweeted ""Victory is mine!!!! -stewie griffin,"". The headline(s) all consistently played up the overturning of the suspensions.
It's a shame no one bothered to read the actual decision. (Take a look at http://assets.espn.go.com/pdf/2012/0907/Saints%20Summary%20Decision.pdf) The decision itself is not very favorable to the players, and, in fact, subjects them to more, and not less, discipline. By way of background, the players argued the commissioner had no right to suspend the players for what was basically a pay issue, because pay issues were governed by a "system arbitrator," and that therefore the commissioner had no authority to act. The commissioner argued that he had the right to punish "conduct detrimental" to the NFL and it was not a pay issue at all. The panel agreed with both sides, essentially. The panel decided that the commissioner can punish "conduct detrimental" but not compensation violations, and that the "system arbitrator" can punish pay violations but not "conduct detrimental." So what the panel decided was that because at least some of the punishment had to do with pay, and not conduct, the commissioner had to restate the penalty for just conduct, and the "system arbitrator" could impose a penalty for the pay violations.
These players may wake up in a couple of weeks and be serving two sentences, which add up to more than the one that got overturned.
Let's see how long it takes someone to point this out.
Wednesday, September 5, 2012
What Makes The News?
No decisions were released yesterday, so, instead of analyzing decisions, I decided to see what the local news has said about the Georgia courts this past week. I went to www.ajc.com, performed a basic word search, and learned that exactly one Georgia appellate decision was deemed newsworthy. The entire report reads as follows:
"Councilman loses in appellate court
"Councilman loses in appellate court
The Court of Appeals of Georgia has decided against Marietta Councilman Philip Goldstein’s attempts to build a five-story building on the Marietta Square.
The court on Aug. 31 agreed with a Cobb Superior Court ruling a year ago that dismissed the case. The councilman sued the city in April 2011 after the council lowered maximum building heights to 42 feet on the Square.
He has 10 days to ask the appellate court to reconsider its decision."
You might be asking, how did I miss this groundbreaking piece of real estate law. The answer is simple: I report on what the Court actually did. And what the Court actually did was pretty boring, and, one might say, obvious. The case is Marietta Properties LLC v. City of Marietta. And, in fact, the case does refer to the maximum building height ordinance. But the ordinance had nothing to do with the decision. Indeed, the key fact in the case was that "Marietta Properties has never submitted an application for a permit to construct the building." In other words, there was nothing over which to sue. The ruling stands for the very basic principle that, unless there is something like an actual controversy (as opposed to a theoretical dispute), the courts will not get involved.
So, what makes this the only "newsworthy" case from the last couple of weeks? Controversy among government officials and a plan to put a building in a prominent location seem to be the key ingredients. But nothing in this case is going to have a long term legal impact.
Tuesday, September 4, 2012
Ordinary Lawsuit Rights Do Not Apply When The Bank Wants Your Stuff
OK, I'm sensationalizing. But last Friday we had one of those seemingly innocuous, maybe even boring, procedural decisions that means a heck of a lot more than it would seem at first glance. Were this being written for lawyers, the comment would be that "the right to open a default given by the Civil Practice Act does not apply in a personalty foreclosure." And that would indeed be an accurate description, providing no meaning to the general public. So I had to dress up the headline a little bit. Today's topic is Mathis v. River City Bank, handed down last Friday.
Most lawsuits are governed by the rules set out in what's referred to as the Civil Practice Act. These rules contain various deadlines, requirements and procedure so that lawsuits are not free-for-all battles. One rule is that if you are sued, you have 30 days to respond. If you don't respond, you are in "default," which means, very generally, that you automatically lose. (It is much more complex than that, but that's the gist.) But, you have a second chance. For the 31st to the 45th day, all you have to do is pay "costs" (like, ninety dollars) and you are out of default. It's a forgiving system for people who just miss the deadline. The consequences are much harsher after that.
A judicial foreclosure is a kind of lawsuit. That is, something is filed in court, there's a requirement that the filing be responded to, etc. Mathis v. River City Bank was one of those -- a judicial foreclosure. Mathis had borrowed money from the bank, and the bank was given a lien on Mathis's farm equipment and other things. Mathis didn't pay, and the bank went to court seeking the right to take the equipment. Mathis did not answer on the 30th day but did follow the procedure for answering by the 45th day. The trial court said that was too late, and our Court of Appeals agreed. Simply put, the law is now that the 15 day grace period that does apply in nearly every lawsuit filed in Georgia does not apply in the context of the taking of property by a creditor.
What would the reaction be if the Governor proposed making it easier and faster for creditors (e.g. banks) to take property from debtors (i.e. consumers, borrowers)? There would be a massive outcry about government being too helpful to business. But here, when the Court of Appeals does exactly the same thing, the decision will be met with silence. Why? Because no one follows these subjects. So I am writing about it here.
(Note: I am not providing a technical legal analysis of why the court decided the case the way it did, which involved interpreting a couple of statutes to determine what kinds of lawsuits the Civil Practice Act applies to. The purpose here is not to go to the rationale of the decision, but, rather, to note that a decision occurred.)
Most lawsuits are governed by the rules set out in what's referred to as the Civil Practice Act. These rules contain various deadlines, requirements and procedure so that lawsuits are not free-for-all battles. One rule is that if you are sued, you have 30 days to respond. If you don't respond, you are in "default," which means, very generally, that you automatically lose. (It is much more complex than that, but that's the gist.) But, you have a second chance. For the 31st to the 45th day, all you have to do is pay "costs" (like, ninety dollars) and you are out of default. It's a forgiving system for people who just miss the deadline. The consequences are much harsher after that.
A judicial foreclosure is a kind of lawsuit. That is, something is filed in court, there's a requirement that the filing be responded to, etc. Mathis v. River City Bank was one of those -- a judicial foreclosure. Mathis had borrowed money from the bank, and the bank was given a lien on Mathis's farm equipment and other things. Mathis didn't pay, and the bank went to court seeking the right to take the equipment. Mathis did not answer on the 30th day but did follow the procedure for answering by the 45th day. The trial court said that was too late, and our Court of Appeals agreed. Simply put, the law is now that the 15 day grace period that does apply in nearly every lawsuit filed in Georgia does not apply in the context of the taking of property by a creditor.
What would the reaction be if the Governor proposed making it easier and faster for creditors (e.g. banks) to take property from debtors (i.e. consumers, borrowers)? There would be a massive outcry about government being too helpful to business. But here, when the Court of Appeals does exactly the same thing, the decision will be met with silence. Why? Because no one follows these subjects. So I am writing about it here.
(Note: I am not providing a technical legal analysis of why the court decided the case the way it did, which involved interpreting a couple of statutes to determine what kinds of lawsuits the Civil Practice Act applies to. The purpose here is not to go to the rationale of the decision, but, rather, to note that a decision occurred.)
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