Recent Articles in Civil Rights & Privacy Law from LexMonitor

Why Do Federal Investigations Take So Long?

Tue, 09 Feb 2010 02:40:46 GMT

This week's first call from a potential client posed the question: Why do federal investigations take so long? Long is right! I am involved in a fraud case in federal court (potentially) that began nearly 5 years ago, and like that rabbit it just keeps going and going and going and - well you get it. Federal prosecutors are like great gift givers at Christmas. By the time you get their "package" it is so tightly "wrapped" (resulting from a long, thorough investigation) that you seldom have a chance to get to the goods in one piece. Those long, thorough investigations result in very thorough indictments, and complex trials in federal court.

Federal investigators have unlimited investigative resources when investigating federal crimes. They use wiretaps, surveillance, monitoring of computer and banking records, and they love informants. As a result, federal investigations frequently take months and years and seldom involve mistakes or sloppy work, unless those informants have gotten sloppy.

And let's not forget the darling of every federal prosecutor - conspiracy. In almost every federal criminal case you will find a conspiracy charge, to give the feds even greater investigative leverage. A charge of conspiracy changes the rules. That out of court statement made by your brother is suddenly admissible at trial because of the co-conspirator exception to the hearsay rule. Other defendants making plea bargains may claim you are guilty of crimes you did not commit or are only partially responsible for, based on hearsay and their motive to avoid a stiff sentence.

So what to do if facing a federal investigation? Here are my top three tips:

First - hunker down and be willing to endure. You can seldom change the course or scope of a federal investigation, whether you are suspected of some type of fraud or an obscure federal criminal tax violation. So settle in and hope to wait them out. It happens! Sometimes they find a bigger fish to follow and lose interest in your problems.

Second - get the best legal help you can afford. ONLY hire an experienced criminal defense lawyer who has spent time trying criminal cases in federal court. Ask him or her specifics about federal criminal trials and do not settle for someone who has never WON a federal criminal trial. You do not need a novice or a generalist - your life and liberty are on the line.

Federal criminal trials are different from state or local criminal prosecutions. They are more complex, they take longer to get to trial and you start at an investigative disadvantage because of the length of time the United States has taken to investigate before filing that criminal case.

Finally - do not talk about the case with others. There is no "frightened potential criminal defendant - old college room mate" privilege. There is that attorney - client privilege that allows us to hear the whole story in complete confidence so that we can give you reasoned advice. Real advice on what to do next.

And do not talk to the investigators. I suppose that is technically my fourth tip. But I mean it!

So hang in there and get ready for that long ride if the feds are after you. Start with these ideas, but if you need to talk to someone right now - pick up the phone and call your favorite lawyer.

Dan Michaluk

daniel-michaluk@hicksmorley.com (Dan Michaluk) — Tue, 09 Feb 2010 01:16:10 GMT

On January 27th, the British Columbia Supreme Court denied a request for an order requiring an online contact lens and eyeglass business to disclose the identity of an eye care professional it employs. The College sought the identity of the registrant who worked for the respondents (affiliated companies) in the course of an investigation. The College [...]

The College sought the identity of the registrant who worked for the respondents (affiliated companies) in the course of an investigation. The College applied to the Court for an order based on the Court’s equitable jurisdiction (a Norwich Pharmacal order), or alternatively, its inherent jurisdiction (in aide of an inferior tribunal).

The Court held that an order should not be made on either basis. This was partly based on a finding that the evidence did not show the unidentified registrant was involved in the matter under investigation. The Court also held that an order would not be appropriate in light of the statutory powers granted to the College. The Court suggested that the College had ample means to identify the registrant without relying on the Court, noting its power to inspect the premises and records of a registrant, the possibility of asking for warrant to search a non-registrant’s premises and the possibility of requiring registrants to file their business address and telephone number.

College of Opticians of British Columbia v. Coastal Contacts Inc., 2010 BCSC 104 (CanLII).

Complimentary Webinar - Massachusetts Data Security Regulations: A Plan for Compliance

Mon, 08 Feb 2010 18:22:20 GMT

Beginning March 1, 2010, businesses will be required to safeguard from identity theft and other dangers personal information about Massachusetts residents under a “written information security program” or WISP. Similar requirements exist in other states around the country, although those requirements generally are not as comprehensive as those becoming effective in the Bay state.

Our complimentary webinar is designed to help employers and businesses become compliant. The program will cover:

the emergence of data security mandates across the country,
the Massachusetts approach to data security – breach notification, data destruction, the nuts and bolts of the identity theft/data security regulations, and
best practices when creating a WISP.

We hope you enjoy the webinar.

Insurance Coverage for Adult Children under Act 4 Optional for Employers

Mon, 08 Feb 2010 16:38:33 GMT

We have had a number of inquiries and comments on our blog post regarding Act 4, the amendment to Pennsylvania's insurance company law relating to health insurance coverage for adult children up through and including age 29. Prior to Act 4, if an employer offered dependent coverage, insurance companies were only required to provide coverage to children on their parents' insurance until the age of 19. The Pennsylvania Insurance Department estimates that almost 40% of those who were uninsured in Pennsylvania are between the ages of 19 and 29.

A key phrase of Act 4 provides that the insurer's obligation to provide coverage to a child of an insured employee beyond a specified age, up through and including the age of 29, is "at the option of the policyholder", meaning the employer. Also, coverage would be provided at the insured employee's expense. Employees may wonder why an employer would not choose to provide this coverage and what the value is of legislation mandating insurers to offer coverage while giving employers the ability to opt out. In addition, if an employer is self-insured, Act 4 does not make any change in what coverage must be offered because it applies only to insurers.

While insurers may appreciate the opportunity to provide coverage to the group of young adults who are underserved, employers are not likely to be as supportive. It has been projected that the mandate would increase employees' contributions to their group health insurance, since insurance laws require additional costs to be spread among all employees, and not just those with adult children. This may result in overall health insurance premiums rising for employers and all employees. In addition, this effect could result in more employers becoming self insured to avoid legal mandates such as extended adult child coverage or Pennsylvania mini COBRA application requiring COBRA coverage for employers employing fewer than 20 employees.

You can visit the Pennsylvania Insurance Department's website for additional information regarding Act 4.

charonqc

Mon, 08 Feb 2010 15:45:55 GMT

charonqc

Mon, 08 Feb 2010 06:11:39 GMT

Fresh from supporting the ‘Kill a burglar’ wheeze conjured up by Chris Grayling and David Cameron last week - Dominic Grieve, Shadow Overlord on Everything to do with Law, has a new plan to grab votes from the outraged classes of Britain who want prisons to be stripped of swimming pools, televisions, soft beds blah [...]

Fresh from supporting the ‘Kill a burglar’ wheeze conjured up by Chris Grayling and David Cameron last week - Dominic Grieve, Shadow Overlord on Everything to do with Law, has a new plan to grab votes from the outraged classes of Britain who want prisons to be stripped of swimming pools, televisions, soft beds blah blah blah.

The latest plan, reported this morning in The Times – Every defendant convicted in a criminal court would have to pay a levy of £200. On the face of it, this seems a vaguely sane and sensible idea to contribute to the costs of bringing criminals to justice. But then there is the problem of scale. What if the offence was trifling or minor compared to say a Great Train Robbery or complex fraud case? Would it include motoring offences? (No, says Grieve) What about defendants of very different means?

On closer inspection – The Times reports: “It would only apply where defendants were granted legal aid, which would mean more serious cases that carry a risk of a serious penalty.”

This is ripping stuff – obviously thought through very carefully by a team of the Tory party’s best minds.

The Times notes: “The Legal Services Commission was criticised last week by the Commons Public Accounts Committee as “not fit for purpose”. Mr Grieve said: “The evidence suggests it is not producing value for money and so will be part of our quango review.” He is looking at a scheme to reap some of the interest earned on clients’ money held by solicitors in their firms’ accounts: in France, this brings in about £300 million.”

Grieve is certainly on the money with the Legal Services Commission being ‘not fit for purpose’ BUT the plan to claim some of the ‘interest’ on moneys held in solicitor client accounts. Forgive me if I am completely out of touch with modern taxation legislation – but isn’t this already covered in the tax return? I can’t believe that the Treasury has missed a wheeze, where to avoid any form of taxation on interest - one simply hands it to a solicitor to hold in their bank account?

These ideas are not that important of course. They will be quietly shelved at a later date. It is all in the spin… the headlines… to grab the attention of voters who ‘know what they like and don’t like’ . The headlines will allow the ravening horde with their flaming torches to purr with pleasure at the thought that the Tories are going to stem the tide of leniency and criminal facing concern in the Nu-Labour justice system.

Meanwhile, professionals who actually work in the field (and who know what they are talking about) and who are responsible for prosecuting, defending and judging are worried that our criminal justice system is failing because there is not enough money to run it.

The Bar Council warned:

Junior Criminal Bar under threat from botched Legal Aid Reforms warns Commons Committee

“The influential House of Commons Public Accounts Committee has today published a damning report on the Legal Services Commission’s handling of legal aid reform.

The report on criminal legal aid procurement also warns that the increased use of solicitors to conduct work in the Crown Court is threatening the long-term future of the junior criminal Bar and may be affecting the quality of advocacy provided in those courts.

Welcome to Britain for the next binge session on Olympic sport when London hosts the Olympics. If you were worried that the government, the police and others responsible for our security were falling behind in their disregard of the human rights provisions of Europe… fear not.

Unlawful anti-terror powers planned for use during 2012 Olympics

The Times has the story: “Police are planning to use an anti-terror law deemed unlawful by the European Court of Human Rights across the country during the London Olympics, The Times has learnt.

Senior officers are considering using Section 44 of the Terrorism Act 2000 at every Underground and railway station nationwide. Privacy campaigners criticised the proposal yesterday. The powers would enable police to stop and search members of the public without any suspicion that they were involved in terrorism.

The Times understands that this would be the first time that the powers would have been used across such a wide area. Police said that Section 44, which must be granted by the Home Secretary for a designated area, would be used only in the event of an escalated terror threat. Officers are being trained to use behavioural profiling to spot suspicious characters during stop- and-search operations.”

An imagined exchange between PC Eagerplod and a member of the public: ‘Ello, ‘ello, ‘ello…what have we here then… a pole vault pole? Why would you want a pole vault pole? This could be used to pole vault over the fence at Downing Street and then be used as an offensive weapon to harm the prime minister, Sir. I’m afraid we are going to have to arrest you. What…?! you will be late for your event? Pull the other one son… “

Sikh judge Sir Mota Singh criticises banning of Kirpan

The BBC reports: Sikhs should be allowed to wear their ceremonial daggers – known as Kirpans – to school and other public places, Britain’s first Asian judge has said. There have been a number of cases of Sikhs being refused entry to venues because they wear the Kirpan or other religious artefacts. Sir Mota Singh QC has now criticised schools, in particular, over the issue. “Not allowing someone who is baptised to wear a Kirpan is not right,” Sir Mota told BBC Asian Network.

While I understand that sensitivity has to be shown towards those who have faith and believe in a god – there are, obviously, concerns that people are wandering about with daggers under their clothing and, presumably, it would not be that difficult for a terrorist to assume the disguise of a Sikh?

You are a lawyer, a woman and have a family — and the big firms

Another article on the glass ceiling with all the usual cliches run up the flagpole. 60 per cent of the intake to the profession are women, yet very few women make it to the top. The reason for this is probably biological in terms of babies and connected with the phenomenon known as wanting to develop some form of a life rather than being involved in the moneymill down at Mammon City. Law firms will have to change their practices if they wish to retain bright female staff. As the number of women going into the profession as a percentage of intake increases, I suppose it is possible we could get to a wonderfully surreal position where we have absolutely no lawyers in magic circle / City firms older than 30 (because all lawyers are women) and they wither away. This is unlikely.

The Times notes: “The head of a top City firm said that he had begged many of its brightest young women lawyers to stay in it, but once they wished to start a family they would put up with work travel and clients’ late-night calls no longer. “Magic circle” firms know that in seeking continuity of talent, they are running out of time.

The article is here if you want to read it. Yawn….. wake me when the magic circle etc firms finally wake up and change their working practices.

Thousands to lose jobs as universities prepare to cope with cuts

• Post-graduates to replace professors
• Staff poised to strike over proposals of cuts

Guardian

I shall return to this issue in a later post. Having spent 30 years in legal education, I am fairly sure that department budgets won’t be cut that much for the very simple reason that law courses are ‘cash cows’ for Vice-Chancellors. What is more likely to happen is that money generated by law departments will be channelled into other less profitable courses – to the detriment of law programmes? This will be a juggling act. Killing golden geese is not a great idea.

A quick look at the law blogs…

Professor John Flood RATS: Tesco Law in a Wig and Gown

“Are solicitors endangered? James Dunning has an insightful post on this at his blog, An Inside Take from the Outside.”

Jack of Kent: Of Political Bloggers and Science Bloggers

“The blogger Anna Raccoon makes some excellent points about the impact of political blogging on scientific questions here (even if her actual views on those scientific questions are misconceived).”

Matthew Taylor: Reporting or relating, or The Mail does what the Mirror didn’t

“Who’d have thought the Daily Mail harbours better journalists than the Daily Mirror? Last week the Mirror couldn’t wait to tell us about their “discovery” that Adeela Shafi, Tory PPC for Bristol East, had incurred several CCJs since 2007. So hasty were they that they apparently forgot the minor detail of reporting the story – as opposed to merely relating public facts – leaving their readers to wonder what the story was.”

Geeklawyer : Busy

“Geeklawyer is not dead. But he is in a very large & complex case and so is unable to spare the time to blog. However the merciful release of closing submissions will soon be in sight whereafter the whoring and drinking shall recommence.”

And finally…. over to The White Rabbit to raise the tone…

I can’t help posting this…

“This (nicked from Blue Heron Blast) is a restroom – don’t the Americans have the coyest euphemisms! – in New York. Any suggestion that this blog has degenerated into cheap smut of late is to be deprecated…..”

charonqc

Sun, 07 Feb 2010 14:20:00 GMT

Dear Reader, I write from The Staterooms-on-Thames, Battersea – a curious place overlooking Chelsea Marina and close to Battersea Bridge. I can’t quite see the boat I used to live on at Cheyne Walk beside Battersea Bridge. It is a short walk to World’s End, Chelsea for coffee, breakfast and a read of the papers. I [...]

Dear Reader,

I write from The Staterooms-on-Thames, Battersea – a curious place overlooking Chelsea Marina and close to Battersea Bridge. I can’t quite see the boat I used to live on at Cheyne Walk beside Battersea Bridge. It is a short walk to World’s End, Chelsea for coffee, breakfast and a read of the papers. I plan to live here for a year and then… who knows?

I’ve brought some of my paintings and some furniture with me and I thought I would take a few pics on my mobile to show the main room where I drink and work – sometimes at the same time. (Dotted about the post)

I have my small computer table set up in an alcove overlooking the river. It is north facing so there is no direct sunlight coming in to interfere with the laptop screen.

The main room is probably three times thee size of the main room in the apartment I had at Chatham Maritime on The Medway. There is, unfortunately, no balcony. I have to do my Smokedo exercises inside. This is not a problem. There are many gulls, ducks, cormorants. The sound of helicopters going to the heliport is fairly regular but by no means intrusive. There is almost always something going by on the Thames – yesterday kayaks and an eights boat full of earnest rowers being shouted at by a guy in a motorboat has just gone by.

Britain may have to brace itself for another snow cold snap. The eastern seaboard of the US is enduring what Obama called Snowmaggedon. Our BBC and Sky news reporters often look ridiculous when they report floods while standing in puddles of water or snow while demonstrating just how slippery it is – but they are nothing on this guy from the States. He loses the plot completely – well worth a watch. [Hat Tip to fellow twitter user @stokenewington

John Terry’s ‘£750,000’ legal gag

The Times has weighed in with a tasteful piece suggesting that the exact sum is disputed: friends of Perroncel say it was £750,000 while friends of Terry claim the sum was £400,000. Private Eye has a rather more sardonic view saying that Schilling's, who represent the great, the good and the (obviously) not so good who want to keep their deeds hidden from prying eyes.

Private Eye notes that Schillings describe themselves as..

The leading law firm protecting the reputations of high-profile individuals, corporates and brands.

"Schillings is one of Britain’s top law firms dedicated to safeguarding the reputations of international corporations, brands, celebrities and high-profile business people. The firm’s track-record in defamation, privacy and copyright cases is second to none." [This is from the Schillings website] As Private Eye pointed out – and I checked today – the Schillings private client news section on the front page trupmepts success – but I could find no mention of the Terry superinjunction which was lifted by Tugendhat J last week.

A quick look at Wikipedia reveals that Battersea is…

Historically a part of Surrey, the area takes its name from the old village of Battersea, an island settlement established in the river delta of the Falconbrook; a river that rises in Tooting Bec Common and flows underground through south London to the River Thames.^[3] The site of the original settlement is marked by St. Mary’s Church. William Blake was married, and Benedict Arnold and his wife and daughter are buried in the crypt of the church. Battersea is mentioned in Anglo-Saxon time as Badrices ?eg = “Badric’s Island” and later “Patrisey”. As with many former Thames island settlements, Battersea was reclaimed by draining marshland and building culverts for streams.

The settlement appears in the Domesday Book as Patricesy. It was held by St Peter’s Abbey, Westminster. Its Domesday Assets were: 18 hides; 7 mills worth £42 9s 8d, 17 ploughs, 82 acres (330,000 m²) of meadow, woodland worth 50 hogs. It rendered (in total): £75 9s 8d.^[4]

Here is a picture of Battersea Square…. lively in summer. It was rather quiet as I sat at Muzar drinking coffee and smoking cigs while reading the News of The Screws. I read The Observer later… when the mind is clear!

World’s End, Chelsea and the King’s Road is but a 10 minute walk away – a part of London I have enjoyed for 30 odd years.

Finally… a pic of the from Battersea towards Cheyne Walk, Chelsea and the boats where I lived for a while in the second half of 2008.

Have a good week… back with some law / politics stuff ;later

Best, as always

Charon

Asset Search News Roundup: February 7, 2010

Sun, 07 Feb 2010 05:00:06 GMT

The Wall Street Journal's February 4, 2010 article "Switzerland Freezes Freed Duvalier Assets", is about alleged illicit assets blocked in Switzerland. The blocked assets have been maintained in Swiss bank accounts and are believed to originate from Haiti's public coffers. These public coffers were reportedly looted by former politically exposed person Jean-Claude "Baby Doc" Duvalier, who fled Haiti in 1986.

The Wall Street Journal article claims that foreign dictators no longer favor hiding assets at Swiss banks because of "tough" Swiss laws requiring banks to know the source of funds. The Swiss laws the article seems to refer to are commonly called "customer identification" or "know your customer" rules. Rules requiring banks to identify their customers have been adopted across the globe and are in effect in the United States, the United Kingdom, etc.

Swiss banks specifically follow customer identification rules by requiring their customers to execute a "declaration of beneficial ownership" which is also known as a "Form A". Swiss banks also routinely monitor customer accounts, consistent with international anti-money laundering standards. A former Yale Law School visiting scholar discusses the use of "Form A's" and shares some of his views on Swiss banking, at "Customer Identification At UBS AG And Some Other Banks".

Dan Michaluk

daniel-michaluk@hicksmorley.com (Dan Michaluk) — Sun, 07 Feb 2010 01:21:52 GMT

On January 27th Marrocco J. of the Ontario Superior Court of Justice dismissed a motion for a further and better affidavit because the moving party had previously taken custody of the records that it wanted the respondent to produce. The moving party had executed an Anton Piller order that apparently gave it unrestricted access to a [...]

The moving party had executed an Anton Piller order that apparently gave it unrestricted access to a number of hard drives, and it used the drives to demonstrate deficiencies in the respondent’s production. In dismissing the motion, Marrocco J. said:

Rule 30.03(2) of the Rules of Civil Procedure provides that the affidavit of documents shall list and describe all documents relevant to any matter in issue in the action that are in a party’s “possession control or power…”. In this case, the respondent’s hard drives were seized under an Anton Piller order. They were imaged and the imaged hard drives were made available to the plaintiff. The plaintiff can have access to the imaged hard drives at any time. Therefore, it seems to me that the imaged hard drives are within the power, if not also the possession and control of the plaintiff. Therefore, pursuant to Rule 30.03(2), the plaintiff is obliged to review the documents on the imaged hard drives when preparing its affidavit of documents.

Marrocco J. did note that the respondent had not made any claim of privilege in records contained on the hard drives.

Bell ExpressVu Limited Partnership v. Heeren, 2010 ONSC 665 (CanLII).

Children Deserve Laws That Protect Them From Online Pedophiles, Not Laws, As Written, That Serve to Invite Them In

Sat, 06 Feb 2010 20:23:02 GMT

The Massachusetts Supreme Judicial Court recently reversed four indictments of Matt H. Zubiel for an attempt to disseminate matter harmful to a minor, under M.G. L. c. 272, § 28, and as defined in M.G. L. c. 272, § 31. Each indictment was based on Internet conversations between Zubiel and an undercover police officer on different days.

Deputy Sheriff Melissa Marino, a member of the "high-tech evidence analysis team" in the Plymouth County sheriff's department, conducted undercover investigations of crimes, including child pornography and child enticement. Marino created an undercover screen name, "Melissa QT 1995 and set up a Yahoo profile describing herself as "Meliss Smith" from the South Shore, age thirteen, and in the eighth grade. Her profile invited others to "PM" her (a form of instant messaging) if they wanted to send her a "private message."

On February 8, 2006, Zubiel with a screen name of "Ilikesports04," said, "Hi, how are you?" Marino informed Zubiel she was thirteen years old. He indicated he was age twenty-five. Their first online chat lasted forty-two minutes with Zubiel asking Marino for a photograph. She emailed him photographs of herself when she was thirteen years old. They discussed where each lived and they gave physical descriptions of themselves. Zubiel asked Marino, "[You] ever fool around with boys?" and other questions regarding what she had done with boys, how old the boys were, and additional details about those events.

A second online conversation occurred on February 13, 2006. Zubiel brought up several intimate topics asking questions about her physical appearance and her sexual experience and requested she send him a nude photograph of herself. Zubiel also asked if she was a police officer, acknowledging that they could get in trouble for what they talked about.

The next day, February 14, 2006, Zubiel e-mailed Marino a photograph of himself. Again, they discussed sexual topics online and Marino told Zubiel her mother would be working that weekend and she would be home alone. Zubiel questioned Marino further on her sexual history, telling her he would like to visit and “teach [her] everything."

On February 15, 2006, they had an online conversation regarding Zubiel's potential visit. They also spoke on the telephone because Zubiel wanted to make sure Marino was not a police officer. Again they discussed sexual topics, and Zubiel said, "I will show you the right way."

The final online conversation occurred two day later on February 17, 2006. Afterwards, Marino telephoned Zubiel (upon his request) and Zubiel said he would visit her the next day. Marino gave him an apartment complex address in Marshfield. The next day, Zubiel telephoned Marino for directions as he was entering Marshfield. Zubiel arrived, began walking toward the apartment building, and was arrested.

Following his arrest, Zubiel reportedly admitted the following: his "screen name" was "Ilikesports04,” he had conducted all of the online conversation with Marino, "it was a possibility that he would have sex with this girl if -- if, indeed, she was a real girl, and that the thought was there for him to have sex with this minor." Zubiel gave the police permission to seize his computer and a forensic examination revealed searches for Marshfield High School, directions to the apartment complex, the profile page of "Melissa QT 1995," the photographs that Marino and Zubiel sent to each other, as well as portions of the online conversations.

So why did the Massachusetts Supreme Judicial Court reverse the indictments? Because online electronically transmitted conversations are not explicitly included under the law’s definitions and the court wasn’t going to update the definitions for the Legislature. Under the law, there are four broad categories of criminally disseminated matter that are covered: 1) any handwritten or printed material; 2) any visual representation; 3) any live performance; and 4) any sound recording. The Court found none of these categories applied in the present case. In sum, this case comes down to a matter of words—words the Legislature should quickly correct.

The Court states, “If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition of "[m]atter" […], it is for the Legislature, not the court, to do so.” A footnote indicates the Legislature considered amending the law in 2000 to include computer-generated writing, but it has not acted. The court’s tone here suggests that it’s time for the Legislature to take action. At least, I hope that is the message received.

The Legislature should enact enforceable child privacy protection laws quickly. Updated laws are necessary to combat the growing threats dangerously lurking online. Our advancing Information Age, with its evolving communication mediums, requires modern laws that protect children from online sexual predators. Until then, the existing outdated and technologically silent laws only serve to invite these same predators in, and not guard against them.

See Commonwealth vs. Matt H. Zubiel, Slip Opinion, SJC Docket No.: SJC-10454

Judge Closes Hearing over John Edwards Sex Tape

Sat, 06 Feb 2010 14:04:03 GMT

The presiding judge closed a hearing Friday on whether to hold Andrew Young and his wife in contempt for failing to turn over a sex tape purportedly showing Rielle Hunter and disgraced former presidential candidate John Edwards consummating their much-publicized affair. The hearing was held in Chatham County, North Carolina, and it was set in a lawsuit brought by Hunter to recover possession of the tape from Young. Young, a former aide to Edwards, was apparently part of Edwards's misbegotten scheme to cover up his fathering of a child with Hunter, as Young originally claimed the child was his. In a book he recently published, Young says he found the tape in the home where Hunter lived with Young's family for a period of time.

The tawdry story has blanketed tabloids and dailies, but on Friday it gave occasion to consider an important newsroom law issue. At the hearing on whether to hold Young in contempt for not turning over the tape in response to a prior order, the judge without prior notice announced that he would hear argument in chambers, outside the presence of reporters and members of the public. As was reported in the Raleigh News & Observer, the judge heard argument for approximately one hour before emerging and issuing his ruling that Young and his wife were in contempt and would be jailed if the tape is not turned over by 2:00 pm on Wednesday.

Although the trial court administrator contended that closing the hearing was within the judge's "discretion," summarily closing the hearing without notice, without affording the press an opportunity to object, and without entering factual findings supporting closure and reflecting the consideration of alternatives violated North Carolina law.

The North Carolina Constitution specifically provides that "all courts shall be open." This provision entitles members of the press and public to a qualified right to attend civil proceedings, such as the matter between Hunter and Young. Based on the media reports of the hearing, there is no evidence that the judge considered alternatives to conducting the hearing in private or articulated any interests in secrecy that would overcome the presumption of access.

Unfortunately, it appears that none of the phalanx of media representatives who were present invoked a special North Carolina statute that provides a mechanism for gaining access to closed proceedings and sealed documents. In particular, N.C. Gen. Stat. 1-72.1 provides:

Any person asserting a right of access to a civil judicial proceeding or to a judicial record in that proceeding may file a motion in the proceeding for the limited purpose of determining the person's right of access.

Once a motion is made under the statute, the court must convene a hearing "before conducting any further proceedings" relating to the matter in question. Following the hearing, the court must

rule on the motion after consideration of such facts, legal authority, and argument as the movant and any other party to the action desire to present. The court shall issue a written ruling on the motion that shall contain a statement of reasons for the ruling sufficiently specific to permit appellate review. The order may also specify any conditions or limitations on the movant's right of access that the court determines to be warranted under the facts and applicable law.

The ruling is subject to immediate appellate review. It is unfortunate that in this case the court's decision to close the proceeding was not put to the test under G.S. 1-72.1. Nevertheless, the episode provides an important opportunity for reporters and editors to learn of this special procedural right they enjoy in North Carolina to challenge the closing of a courtroom or the sealing of a court record.

charonqc

Sat, 06 Feb 2010 11:20:43 GMT

A senior Church of England bishop has condemned the Labour Government for forcing God out of politics. Times: The Bishop of Durham, Dr Tom Wright, the fourth-most-senior in the church hierarchy, warned that the British public had been left to “lurch in a sea of amoralism”. The Prime Minister had become akin to an “absolute monarch” [...]

A senior Church of England bishop has condemned the Labour Government for forcing God out of politics.

Times: The Bishop of Durham, Dr Tom Wright, the fourth-most-senior in the church hierarchy, warned that the British public had been left to “lurch in a sea of amoralism”. The Prime Minister had become akin to an “absolute monarch” with little or no accountability, he added.

While I tend to favour reading the tabloids first on a Saturday (I do like to keep up with the tabloids and their pre-occupations) I woke this morning, after an amusing night, at 6.00 am to read an article in The Times about Labour erasing god from politics and thought that this was probably the best news about Labour I had heard in months.

The Times reported: “In an interview with The Times, Dr Wright, a leading evangelical, echoed the remarks of the Prince of Wales this week and criticised the “myth” of the Enlightenment.”

I tend to agree with the commenters on on the Times story that (a) there is about as much point in arguing about religion with someone who has firm religious beliefs as arguing with a drunk and (b) It is a bizarre experience arguing rationally about religion with someone whose most firm belief is unfounded or ‘unproven’.

Years ago, I spent a surreal evening with a cousin of mine who went to Canada at the age of 13 after his father died. I met him again some 25+ years later when he returned to Britain for a visit. He had found a god somewhere in the Canadian countryside (Vancouver area) and told me quite firmly that the earth was only 4500 years old. He countered my introduction of geological and biological scientific research which indicated that the earth was very much older by telling me, with equal solemnity, that God put the dinosaur skeletons in the ground 4500 years before. He offered no answer as to why God would do such a thing. He just beamed at me in what I presume he took to be a saintly manner. My then wife, a lovely, patient and kind woman, rolled her eyes as I reached for the wine and became even more skeptical.

It was impossible to shake him from his beliefs. I then found myself in the position of Basil Fawlty telling everyone at the hotel ‘not to mention the war’ when a group of Germans were staying there and I developed a specialised form of ‘religious tourettes’. Pretty well every third sentence involved ‘For Christ’s sake’…. ‘Jesus!’… ‘Christ on a bicycle’ or some variant on the phrase when my cousin ‘revealed’ some more truths from his biblical researches.

I met my cousin (who was kind enough to send me some polemic about ‘the burning bush’ when he returned to Canada after this first meeting) – ten years later. He seemed to have been cured, had given up religion and was drinking in the finest traditions of our mutual ancestors. This time his behaviour was more surreal. He asked me if I would like a stuffed brown bear. I was, I admit, pissed and said ‘Why not? I had a leopard skin rug in my office which some fool had shot in 1921 (I brought it from an antiques auction when over refreshed one Saturday afternoon). I thought no more of the offer of a brown bear until, six weeks later, DHL arrived with a very large box. Inside was a a HUGE brown bearskin, compete with head. My cousin had reported the bear to the Police. Apparently the bear was being over enthusiastic about coming onto his ranch where he ran outward bound courses for kids. The Police shot the bear. My cousin had stuffed it. His wife was not enthusiastic about having a dead bear lying around.Hence… the bear was sent to me.

So I now had a dead leopard and a HUGE brown bear on the floor of my office. Six weeks after the arrival of the bear, I had the bizarre and mildly eccentric experience of helping the former Director of Kew Gardens who ran a fascinating botanical magazine. He wanted a website. I said that I would be happy to assist as my then multi-media production team were very experienced website developers. He talked to me earnestly about how important conservation was, mentioned CITES, and said that people needed to learn how to co-exist with animals and plants. I looked at the dead leopard and the HUGE brown bear but feet away – and even I had the grace to feel slightly ‘guilty’.

Dan Michaluk

daniel-michaluk@hicksmorley.com (Dan Michaluk) — Sat, 06 Feb 2010 10:55:37 GMT

On January 27th, a majority of the Alberta Court of Appeal held that the time limit for completing an inquiry or giving notification of a time extension in Alberta PIPA is mandatory, but that non-compliance does not necessarily result in a loss of jurisdiction. Section 50(5) of Alberta PIPA establishes a time limit for completing an [...]

Section 50(5) of Alberta PIPA establishes a time limit for completing an inquiry in the following language:

50(5) An inquiry into a matter that is the subject of a written request referred to in section 47 must be completed within 90 days from the day that the written request was received by the Commissioner unless the Commissioner

(a) notifies the person who made the written request, the organization concerned and any other person given a copy of the written request that the Commissioner is extending that period, and

(b) provides an anticipated date for the completion of the review.

The majority, in a judgment written by Watson J., held that the decision to extent (and notify of the same) must be given before the expiration of the 90 day time period and that the time period is mandatory rather than directory. The majority also held, however, that loss of jurisdiction does not flow from non-compliance if there has been (my emphasis):

(a) substantial consistency with the intent of the time rules having regard to the reason for the delay, the responsibility for the delay, any waiver, any unusual complexity in the case, and whether the complaint can be or was resolved in a reasonably timely manner, and

(b) that there was no prejudice to the parties, or, alternatively, that any prejudice to the parties is outweighed by the prejudice to the values to be served by PIPA.

Berger J. dissented. He held that the time limit was directory and also took issue with the Applicant’s failure to raise a timely objection before the Commissioner.

This has obvious practical significance to the Alberta OIPC and Alberta practitioners. (Alberta FIPPA has a similar time limit.) It is also a significant administrative law decision on the mandatory/directory point that only a lawyer could love. Commissioner Work says he will appeal.

Hat tip to David Fraser. For his Slaw post that includes the relevant context, see here.

Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner), 2010 ABCA 26 (CanLII).

New Jersey Lawsuit Involving Former Premier Misick Settles

Sat, 06 Feb 2010 05:00:01 GMT

The Court announced yesterday that there had been a settlement in the New Jersey case involving Former Premier Michael Misick of the Turks and Caicos Islands. The settlement is mentioned at the Court's Order of Dismissal and by the current docket report.

According to various court filings, the Former Premier could have been a beneficial owner of Hip Hop Weekly Magazine through his alleged interests in: My Way Productions 2 LTD. ("My Way"), Z & M Media LLC ("Z & M"), and the holding company for Hip Hop Weekly Magazine, Hip Hop Global Media, LLC ("HHG"). (Cf. Defendants' Answer, Counterclaim and Third-Party Complaint at p. 26 ¶ 7) (claim that the Former Premier and his ex-wife LisaRaye McCoy were "real parties in interest").

The Verified Amended Complaint in the New Jersey case meanwhile, indicated at ¶¶7, 57, 75, 78, 80 and Exhibit "H", that My Way or Z & M or HHG, might have been involved in making substantial capital contributions:

$798, 647. 57 capital contribution from My Way into Z & M;
$10,000.00 capital contribution from My Way into HHG;
$833,334.00 capital contribution from My Way into HHG and Z & M;
$260,000.00 capital contribution from Z & M to fund Hip Hop Weekly Magazine.

Given the facts that Mr. Misick was the the focus of a public corruption probe, (and also has an apparent nexus to Hip Hop Weekly Magazine, My Way, Z & M, and HHG), governmental authorities would presumably ask: Were the supposed capital contributions listed above, possibly derived from the alleged proceeds of Mr. Misick's suspected public corruption scheme?

If monies, stock shares or other assets are constituted or derived from a public corruption scheme, then the same could of course be subject to asset forfeiture pursuant to the laws cited at "Could Former Premier Misick Face U.S. Forced Collection Proceedings?".

Asset forfeiture was a component of U.S.A. v. Jefferson, Criminal No. 1:07-cr-00209. In Jefferson, a former U.S. congressman's assets were subject to forfeiture because they were derived from a public corruption / bribery scheme. As explained at the August 11, 2009 "Asset Search News Roundup", the Jefferson jury found that the former congressman's monies in two bank accounts, were subject to forfeiture.

The former congressman's stock shares in a Nigerian company, a Ghanaian company, a Delaware company, and an Indiana company, could too be forfeited, as demonstrated by the jury's Special Verdict Form:

(Click On The Special Verdict Form To Read Its Entire Contents)

(Last edited 2:25 PM)

Best Buy Counsel Speaks on Data Privacy

Fri, 05 Feb 2010 22:37:58 GMT

On January 29, 2009, I had the opportunity to attend a brief presentation sponsored by Minnesota CLE entitled, “Corporate Data Privacy & Security: 10 Legal Practice Tips,” given by Brad Bolin, Senior Corporate Counsel for Best Buy, Inc. a Fortune 500 electronics retailer headquartered in Richfield, Minnesota. Bolin is a specialist in information security and privacy law. I was curious to hear what data privacy issues were on the mind of someone who monitors these issues for a living on behalf of a large corporation, especially a company that sells some of the very devices that make data privacy more challenging and which is known for its “results oriented” work environment. Many of the issues relate to topics discussed on this blog. The views expressed were strictly those of Bolin, not Best Buy. Here were his observations:

1. Work/Life Balance. Electronic connections are collapsing the distinctions between work and personal life. Employees expect to be connected 24 -7. Bolin quoted Best Buy CEO Brian Dunn as noting, “Technology is … a constant backdrop in people’s lives, at home, at work, on the road and literally in the palms of their hands. We call it the ‘connected world’ and, as exciting as it is, it’s also increasingly complex, and difficult to keep pace with.”

2. Smart Phones Part 1. Smart phones are becoming common and are a great example of how the “limited personal use” exception is swallowing the rule. He cited a survey showing that 20% of companies allow their employees to use personal devices for work, and the number is surely growing. Bolin discussed how under the old corporate model, a company that pays for an employee’s smart phone ought to take it back from the employee upon his or her departure, erase the contents and either recycle or reuse the device to prevent the disclosure of confidential corporate information. But what about the employee’s personal photographs, “apps”, movies, contacts and downloaded songs? What if the employee paid for the device but the company reimburses the cost? Securing employee-owned smart phones is not the same as securing corporate-owned devices, he emphasized.

3. Smart Phones Part 2. Bolin said that, whatever rules you choose, a departing employee should be able to take his or her personal data, while IT should be able to ensure that any corporate information has been safely removed. The process should be simple and transparent to all. Adopt simple rules that make corporate data on an employee's smart phone easier to identify and control. For example, distinguish between media files on the one hand, and xls doc, ppt, and pdf documents on the other. Have a transparent dialog with employees about the trade-offs that exist cost when placing personal phones on the corporate network. For example, an employee might be required to archive SMS text messages on his phone for e-discovery purposes.

4. Texting Issues. While e-mail typically is stored on a common server, text messages usually are stored by cell phone companies or directly on phones, and often the employer does not directly pay for their storage. Employers must have either a warrant or the employee's permission to see cell phone text messages that are not stored by the employer or by someone the employer pays for storage, Bolin said, citing Quon v. Arch Wireless, et al. 529 F.3d 892 (9th Cir. 2008), The case is now under review by the United States Supreme Court.

5. TMI = Too much information. An embedded Global Positioning System (GPS) feature is great for supporting and measuring effectiveness of a mobile sales force, but it raises the danger of collecting information about employees regarding the personal part of their life.

6. Social Networking. Much has been made of social networking, he says, but this is not different in kind from past employee disclosure concerns, only in degree. Most policies on employee's social networking tend to be recitations of or references to standard confidentiality, acceptable use, and other policies. He suggests guidelines like:

a. Disclose your affiliation with your employer.

b. State that it’s your opinion, not the employer’s.

c. Protect yourself – be careful of disclosing personal information on line.

d. Act responsibly end ethically.

e. Respect diversity and honor policies against discrimination.

7. Monitoring Electronic Communications. Bolin says the “old news” is having an electronic communications policy addressing employee expectations of privacy when using company email. The “new news” is that companies have to have a governance policy in place regarding how the company may and will use such information, and it needs to follow it. Tools to gather emails and other electronic information today are immensely powerful, and very easy to use. The temptation will be great to pursue investigations without adequate cause, or without sufficient protective boundaries in place. Bolin cited the Hewlett Packard pretexting scandal of 2006.

8. HITECH Act (HIPAA Redux). HIPAA is still HIPAA, Bolin says, but HITECH ups the ante by requiring breach notification to government and affected consumers of Protected Health Information (‘PHI”), and placing enforcement powers in the hands of the states attorneys general. Covered entities must promptly notify affected individuals, Health and Human Services (“HHS”) and the media in cases where a breach affects more than 500 individuals, and report ALL breaches on an annual basis. Bolin noted that the “hysteria” that has arisen around recent credit card breach notifications could well develop around PHI breach notifications.

9. Employee Privacy in Europe. Privacy is fundamental human right in the European Union and, unlike in United States, can't be waived, Bolin emphasized. If a company wishes to transmit data concerning EU employees to the U.S., he noted, “you'll be required to bring your game up” and enact policies to take advantage of the safe harbor provision.

I think he gives us all some good points to consider.

The 250th Exoneree

Fri, 05 Feb 2010 20:40:51 GMT

Yesterday, Freddie Peacock became the 250th U.S. exoneree proven innocent through DNA testing. In 1977 Peacock was convicted of a New York rape after confessing to the crime. However, Peacock is mentally ill. Although he made law enforcement aware of this [...] Related posts:

Yesterday, Freddie Peacock became the 250th U.S. exoneree proven innocent through DNA testing.

In 1977 Peacock was convicted of a New York rape after confessing to the crime. However, Peacock is mentally ill. Although he made law enforcement aware of this during the interrogations, they continued to badger him until he made the false confession. Five years later he was released on parole has since fought the conviction. With the help of the Innocence Project and DNA testing his conviction was finally dismissed yesterday.

Along with this milestone, the Innocence Project has released a report entitled “250 Exonerated: Too Many Wrongfully Convicted” which shares the touching stories of all 250 exonerees and asks the question “How many more innocent people are in jail?” and “How many more people will be exonerated through DNA?”

It’s a time for celebration but also a moment of sadness. It is absolutely wonderful that with the help of organizations such as IPF 250 people were proven innocent and exonerated. At the same time it’s sad to realize how many people have been wrongfully convicted, and how many more are out there waiting for the same freedom.

Incident of the Week: Free iPhone Password Breaker Released

blogs@foleyhoag.com (Foley Hoag) — Fri, 05 Feb 2010 18:25:18 GMT

Back in October you may remember our post on Elcomsoft, a Russian software company that came out with program to decrypt common wireless network signals. Well, they're back this week with a program that will "enable[ ] forensic access" to password-protected backups for Apple iPhone and iPod touch devices. In other words, if someone obtains access to the computer you use to sync your iPhone they could also get access to "backups containing address books, call logs, SMS archives, calendars, camera snapshots, voice mail and email account settings, applications, Web browsing history and cache." And while the program is in beta testing, Elcomsoft is even giving the program away for free.

The program apparently uses the computing power of the latest generation of video cards to perform a dictionary or "wordlist-based attack" to recover the password needed to unlock the backup files. This means that if your password can be found in a dictionary or a hacker's wordlist, there is a program out there that will unlock it. With technology like this out there to decode commercially available encryption schemes, the best protection we may have is to select a sufficiently complex password to defeat wordlist based attacks (and not to use the same password for all your online activities as Twitter's recent incident and Trusteer's recent survey (.pdf) have suggested are rampant problems).

charonqc

Fri, 05 Feb 2010 14:19:02 GMT

While Guido Fawkes reported this morning that 52% of MPs have been ‘found guilty’ of ‘looting’ in the parliamentary expenses fiasco – the Director of Public prosceutions has decided to charge 3 MPs and a peer. A sixth peer is under further investigation. The BBC reports: ” MPs Elliot Morley, Jim Devine, David Chaytor and Lord [...]

The BBC reports: ” MPs Elliot Morley, Jim Devine, David Chaytor and Lord Hanningfield will be charged under the Theft Act. All four have said they denied any charges and would defend their positions robustly. Revelations about MPs expenses emerged in May last year with the police going on to investigate a handful of cases. Mr Starmer said there was “insufficient evidence to provide a realistic prospect of a conviction” in the case of Labour peer Lord Clarke but said a sixth case remains under police investigation.”

This is a truly astonishing state of affairs. Lawyers are suggesting that parliamentary privilege may be pleaded by the four charged. The DPP says that he has considered that possibility and is prepared to see it gtested in court. It would, of course, be an even greater embarrassment for Parliament if parliamentary privilege could be successfully pleaded in a situation where MPs are carrying out activities completely unconnected with their works as MPs.

It is important to note that there is a big difference between claiming expenses for expenses incurred ‘within the rules’ – even though these have no been found to be excessive or not within the rules and claiming expenses but not incurring the expense. The latter is clearly within the definition of the Theft Act. The BBC reports that…“All four Parliamentarians will face charges of false accounting made under section 17 of the Theft Act 1968.”

Breaking News: Mr. Brown expressed outrage today at the revelation that four MPs will face criminal charges over their expenses claims, saying he was “very angry about what’s happened.”

“These are very serious allegations,” he said.

“That’s why I have put forward proposals to reform not just the expenses system but the way that parliament works,” he added.

Gordon Brown has repaid £12,888.03 for overclaiming on cleaning and other expenses. BBC

Tom Harris MP (who is not on the Legg list) writes…

Is Legg over now?

OKAY, I admit it – I’ve been itching to use that headline for months.

Former judge hits out at ‘damaging’ penalties as he grants MPs’ expenses appeals

Sir Paul Kennedy rejects some or all of Sir Thomas Legg’s demands for repayments in 44 cases, reducing repayment bill by £180,000.

The Guardian reports:

Sir Paul Kennedy, the former judge dealing with MPs’ appeals against demands for repayments after the expenses scandal, was deeply critical of the ”damaging and unfair” penalties today as he granted the majority of the 75 appeals.

Kennedy, appointed by the Commons members estimate committee, rejected some or all of Sir Thomas Legg’s demands for repayments in 44 cases, reducing the repayment bill by £180,000. He was “particularly troubled”, he said, by the suggestion that claims by MPs who had not broken the rules of the time should be described as “tainted” or having “breached the requirements of propriety”.

BPP in the news
I have been advised by the Bar Standards Board that the report into the oversubscription by BPP Law School on the BVC course will be published in the course of the next week or so. I will cover this fully when the time comes.

RollonFriday reports this morning: “BPP has welcomed its future LPC students with customary efficiency by addressing their acceptance emails to the wrong people. Students complained after the college sent out emails using the wrong Christian names and even, in some cases, got the wrong gender. This sort of thing doesn’t go down well with students who have just signed away £12,500 (the equivalent of over 3,000 doner kebabs or almost 5,000 pints of lager).”

RollonFriday is definitely hitting the high notes this week with this wonderful story…

Barrister’s dog obtains an MBA – and other animal stories: “The judgment in the long running Sky -v- EDS case was handed down this week, to the delight of Herbert Smith and its clients BSkyB. And while the commercial and legal ramifications of the £200m award will run for years, astute legal commentators were drawn immediately to the pivotal issue of the dog with the MBA.

During the proceedings, it was alleged that a managing director at EDS had a dodgy MBA, apparently from a college in the British Virgin Islands, but actually obtained through the internet. The point was ably demonstrated by Mark Howard QC who obtained a similar degree from the same college for his pet dog Lulu. As Mr Justice Ramsey noted: “Without any difficulty the dog was able to obtain a degree certificate and transcripts which were in identical form to those later produced by Joe Galloway – but with marks which, in fact, were better than those given to him“. Well what would you expect from the pet of Her Majesty’s Counsel?

More later today…

In Boise - Jury Awards Sex Abuse Victim $1.9 Million

Fri, 05 Feb 2010 13:20:48 GMT

Almost forgot about this one - Charles Hartman - pled guilty to sexual abuse of a minor in 2007. On January 13th a jury awarded his victim $1.9 million. Boise lawyer Walt Bithell represented the victim, who was 16 at the time she was molested. Speaking about the role of the civil case:

"The civil case is designed to do what the criminal system won't do - try to make the family whole. You cannot believe the impact on the victim, and the victim's family," said Bithell, who said in 40 years of practicing law he can remember only one other time when a family pursued a civil judgment in a sex abuse case.

The unanimous jury awarded $1 million in punitive damages, and the balance ($921,000) to cover general damages, counseling and the damage to the family relationships. Although most offenders go to prison and have no money to provide for their victims - that is not always the case. Hartman reportedly has business and real estate that might provide a way to recover the verdict.

So what does this say about the state of justice in Idaho? First, it is possible to win a jury verdict in a civil case that seeks compensation for crime victims. Bithell is a legend here - great trial lawyer and a great man. And Walt had the things you need to win: liability AND damages.

Second, those "run away" verdicts are urban (and country) myths! A young girl's innocence is lost and her family scarred, and a jury awards $1.9 million - not $99 million - like those insurance companies would have us believe. They and the legislature have limited the amount of money a victim can recover in most civil cases supposedly because Idaho juries are not "reasoned" (OK - insert the word "smart" if you dare) enough to sort out real damages from the imagined. Nonsense. Idaho juries, and juries in virtually every courtroom across the land, have a better grasp on what is real and what is imagined than do the insurance fat cats. Think AIG would get those monster bonuses if a group of 12 jurors got to decide?

Third, to win a case like this you have to be willing to try the case. That goes for the client, family and lawyers. Defendants are not going to hand over $1.9 million without a fight, so put on the gloves and get to it. You need a gladiator for your case, and the will to see it through. And trust the jury to get to the truth.

Jury Awards $31M for Drunk Driving Victim

Thu, 04 Feb 2010 20:35:10 GMT

When I was at the Trial Lawyers College I met Daniel Rodriguez - a mild mannered civil rights lawyer from Bakersfield CA. He showed me there that he was simply one of the greatest story tellers in the class and undoubtedly one of the great trial lawyers in the country. He has a home town style that quickly captivates those around him.

He also just won the biggest verdict in California history for a drunk driving case - $31 million.

So how did he do it? Here are a couple things that made his case so compelling:

First - his clients had real damages. His primary client had brain damage and will need constant care for the rest of her life. So there were huge sums of money that will be needed to keep 19-year old Rosie Landros alive. Real damages make a real difference. So often we have potential cases where people are hurt, but seldom are they as severely hurt as the victim here.

Second - there was real liability. The driver of the other car had pled guilty to driving under the influence of alcohol (DUI). When liability is established, the only question is how much the victim is entitled to for damages and there is no issue of contributory negligence.

Third - THERE ARE NO LIMITS FOR NONECONOMIC DAMAGES IN CALIFORNIA - or Wyoming, or Montana, or Texas or a whole bunch of other states. So pain and suffering has real value in those states. In Idaho the insurance companies convinced our state legislature that juries award too much money for pain and suffering, so WE HAVE A $250,000 limit or cap on noneconomic loss. Our pain is not worth as much as the pain suffered in neighboring states.

And those same legislators clamor for tort reform while taking money from those insurance companies and their lackies.

Here's an idea - let's throw them all out of office and start over. Then we the people can restore to us the same rights we would have if we were injured in a neighboring state.

Want to read more about this case? Check out the newspaper account here. And congrats Daniel. From a class of pretty good lawyers at Trial Lawyers College, you again showed us that you are the King!