Lowering the Bar

Swedish Parliament Intervenes in Birthday-Party Dispute

While Sweden's parliament was on the right side of this dispute, you would think it might have more important things to do than get involved in a fight over who should be invited to an eight-year-old's birthday party.  I know Sweden is neutral and everything, but still.

The primary nonsense was committed in May by elementary-school officials, who confiscated all the party invitations after learning that the boy left out two of his classmates.  The school said it had an "unwritten policy" that all children, or at least all children of the relevant gender, had to be invited to any party for which invitations were handed out at school.  The birthday boy had left out two classmates, for what his father said were perfectly good reasons.

"One of them did not invite my son to his birthday [party] and the other has bullied my son for six months," the boy's father said.  "You don't invite your antagonists to a birthday party."  (This is why Vladimir Putin didn't get to come to the White House this year.)  But since the snubs violated the unwritten policy, teachers demanded all the invitations back.

The ensuing scandal resulted in a complaint to the Swedish parliamentary ombudsman, who apparently has authority to rule on the actions of public entities such as the school.  Although the report did not say what regulation or policy the school might have violated (maybe another unwritten one?), it was clear that the eight-year-olds had triumphed.  "The teachers had no right to collect the invitations against the students' will," the ruling said, but also stated that the school would not be sanctioned for its actions.

If and when that party happens, I suggest that everyone be given exactly the same amount of cake.

Link: Yahoo! News

UPDATE: Settlement Reached in N.C. Dirty-Dancing Case

The long legal battle between the town of Marshall, North Carolina, and the woman it banned from its dance hall for overly provocative dancing, has finally ended.  The town agreed to pay Rebecca Willis $275,000 to settle the case.

This brings to an end a saga that began in 2001, when Willis -- then 56 -- was banned from the Marshall Depot for provocative clothing and dancing that allegedly included "gyrating" and simulated intercourse.  She sued.  The litigation ultimately lasted nearly eight years and involved two separate trips to the U.S. Court of Appeals for the Fourth Circuit, which reinstated her case both times, allowing an equal-protection claim to go forward.  After Willis's lawsuit was reinstated the second time, earlier this year, the town finally seems to have thrown in the towel.

It did not, of course, admit any wrongdoing, and an attorney said that its insurer had been pushing for the settlement.  Under the deal, Willis remains excluded from the Depot, which she says is just fine with her.  ($275,000 will buy a whole lot of jiggy someplace else, I'm sure.)  "They said they'd burn the place down before they let her come back," said Willis's attorney, "so we decided to see if they'd put a monetary price on the right."  They did.

Link:  MSNBC.com

Firm Fires Managing Partner Via Note on Chair

Ah, there's nothing like the close-knit camaraderie of a law-firm partnership.  We few, we happy few, we band of brothers (please consider said term to include sisters); for he that sheds his blood with me shall be my brother; and if voted out, he shall receive at least a Post-It to speed him on his way.

That's allegedly how Michael Hausfeld learned he had been booted from Cohen Milstein Hausfeld & Toll, of which he was not only a name partner but also the chairman.  According to reports this week, Hausfeld returned to his office from an off-site meeting to find a note on his chair telling him that the other partners had held their own meeting, and by the way, they had voted him out of the firm.  (It may not have been a Post-It, but on the other hand, I don't think the stationery really matters.)

"Pretty cold," said Hausfeld, who has been with the firm since 1971.

Entirely proper, replied his (former) partner Joe Sellers.  "It's hard to believe he viewed this as a shock," Sellers claimed.  "This was a proper way to give him notice under the partnership agreement."  Wow.  I sure would like to get a look at that partnership agreement:

XXVI(C)(1)(a) Notice of Expulsion

Should a partner be expelled from the Firm -

(i) a partner with more than three decades of service shall be entitled to receive notice of expulsion in the form of one (1) note, said note to be not less than three inches by five inches in size, hand-lettered, and constructed of good-quality paper not less than 24lb in weight, and to be placed in a reasonably visible position upon the chair allocated to said partner by the Firm;

(ii) a partner with more than one but less than three decades of service shall be notified by being told there is a partner meeting off-site, arriving at said meeting to find no one present, and returning to find said partner's office empty of all furniture;

(iii) a partner with less than one decade of service shall not be entitled to notice, but rather shall be bodily carried from the firm by large unidentified men as soon as said partner realizes he or she is no longer receiving compensation.

Sellers claimed they had also sent Hausfeld an e-mail, which seems even less personal.

Hausfeld reportedly is starting his own firm that he said he "expects to staff" with some number of Cohen Milstein lawyers, some of whom Sellers admitted had already resigned.  As of Nov. 13, the main page of Cohen Milstein's website no longer mentioned Hausfeld, but he had not yet been purged from the others.  The site also still contains this statement: "Despite our growth, we have always believed it is very important to maintain the same sense of camaraderie, loyalty, and dedication that we had as a small firm."  Possible new recruiting slogan: "Cohen Milstein: If You Get Fired, You'll Get a Note."

Link: Financial Post
Link: Drug and Device Law Blog
Link: Henry V (Wikipedia)

Swiss Government Demands Respect for Plant Dignity

The Wall Street Journal reported in October that an ethics committee in Switzerland has interpreted that country's constitution to require respect for the dignity of plant as well as animal life.

Among the committee's conclusions: it is "morally impermissible" to arbitrarily cause harm to plants, such as "decapitation of wildflowers . . . without rational reason."

All this apparently stems (pun intended) from a constitutional provision that requires respect for the "dignity of living beings."  This seems to have been aimed at limiting genetic engineering, but for the past few years a committee has been pondering the question whether plants have dignity and if so, exactly what that means.  The result was a report called "The dignity of living beings with regard to plants," which carefully considered the question of whether plants deserve moral consideration for their own sake.  Answer: sort of.

The discussion ranged everywhere from simple common sense to the question of what God wants for plants.  Then there was this:

In terms of ratiocentrism there is unanimity that plants do not have the required capacity for reason that entails we must consider them for their own sake. The positions of patho- and biocentrism, as well as the positions of sentientism and non-sentientism, remain open to the possibility of morally considering plants for their own sake. Someone who takes a ratiocentrist position may be either a sentientist or a non-sentientist. Pathocentrists can only be sentientists. A theocentrist position is compatible with both a sentientist and a non-sentientist position.

 Well, obviously.

"Sentience" is defined as having the capacity to experience harm or benefit.  Some believe that if something is not sentient, morality is not relevant in dealing with it; others think we should respect even non-sentient life.  Apparently, the committee members had a more fundamental disagreement:  "Not quite half of the members are doubtful, based on current knowledge, that plants are sentient."  Translation: more than half of the members think plants have feelings, or aren't sure whether they do or not.  (Sorry - the members are unsure, not the plants.)

The conclusion on genetic modification was that it's okay "as long as their independence, i.e. reproductive ability and adaptive ability are ensured."  As a result, scientists who want to perform experiments on, let's say, wheat, now have to explain to the government why the experiment won't "disturb the vital functions or lifestyle" of the plants involved.  (There is probably a translation issue there, because even if plants were sentient I don't see how they could have a "lifestyle.")  At least one experiment has been moved to the U.S. because the Swiss would not approve it for this reason.

The WSJ reports that Switzerland also now requires people to take a class before getting a dog, and that aquariums have at least one non-transparent wall so the fish will have some privacy. 

Link: Wall Street Journal

Convictions Reversed Due to Judicial Sleeping

In a dramatic reversal of a ruling I reported on last year, the High Court of Australia has overturned the convictions of two men because the judge in their trial slept through much of the proceedings.

An appellate court had ruled 2-1 that although the judge's tendency to doze off was "regrettable," especially given the distracting effect of his snoring, any error was harmless.  For a judge to be "constantly attentive," the court ruled, "is not a fundamental requirement."

The High Court disagreed.  While it is certainly not true that "every minor distraction, inattention, sign of fatigue or even momentary sleepiness constitutes a failure of the judicial function," it wrote, "[i]n this case there was a miscarriage of justice."  The court said its main concern was the effect the many bench naps might have had on the jury, citing evidence that jurors were distracted by the judge's behavior and snoring, and that some had "found his behaviour amusing and even emulated it."

There was also a substantial question whether jurors had paid enough attention to the defendants' case, the court found, noting that the trial judge had slept through much of that, too.

The two defendants, who had faced at least nine years in jail each on drug charges, will now be granted a new trial, this time presumably before a judge who does not suffer from sleep apnea.

Link: Sydney Morning Herald
Link: Why You Must Wake A Sleeping Judge (Lowering the Bar, June 17, 2008)
Link: Learn about the High Court of Australia

A Quote That Might Possibly Describe A Law-Firm Associate But Is Actually About John Stuart Mill

He was such a demon for work that, growing overheated through feverish memo-writing, he would gradually strip off his clothes and work gravely at his stool without waistcoat or pants, as his colleagues watched in prim Victorian wonder.

Link: Adam Gopnik, "Right Again," The New Yorker, Oct. 6, 2008, at 86.

"Confusion Flakes" Cited As Grounds for Reversal

Here's something I came across the other day while doing some research.  After he was found liable for fraud, among other things, John Ryan appealed but presented little in the way of legal arguments or authority in his appellate briefing.  Instead, the briefs were written in what the Court of Appeal described as "overblown" language that tended to resemble "poor melodrama."  For example, the court cited this gem as to Ryan's argument that he was denied a fair trial because the jury was confused by the instructions and verdict forms:

Ryan's entire argument in support of the proposition that the jurors were confused is as follows:

"If page 2269 of the reporter's transcript is held face down and shaken, thoursands of confusion flakes will drift to the ground like snowflakes falling on a snowy winter's day.  That one page alone shows without doubt that the jury, by its own admissions, was extremely confused . . . ."

The court did not think the instructions were very good, but found no basis for concluding that they were so confusing as to generate thousands of confusion flakes drifting to the ground like snowflakes falling on a snowy winter's day.  And, despite some evidence Ryan appealed only for purposes of delay, the court refused to sanction him, saying that at least "some substance lurked beneath the overblown verbiage."

Cite: Ciolino v. Ryan, 2005 WL 2065302 (Cal. App. 1 Dist.  Aug. 29, 2005) (unpublished decision).

Councilman Says He's Done Drinking, Urinating on Crowds From Balconies

A Jersey City councilman says he has "resolved not to touch alcohol again" after being accused of urinating on a crowd of concertgoers from a nightclub balcony last week.  Steve Lipski did not admit the conduct, which allegedly took place at a Washington performance by a Grateful Dead tribute band, but did say that the incident he had not admitted was "deeply humiliating, very embarrassing" and "troubling."

Hey, look on the bright side -- at least they weren't your constituents.  That would tend to lower your approval rating.

Lipski was charged with "simple assault" after workers at the 9:30 Club allegedly spotted him relieving himself from the balcony.  Sources say the councilman has been telling contributors that he spilled a drink and is being wrongly accused.  "I can't comment on that," Lipski told a local reporter.  "I'm going to continue to do all the good things, [such as not urinating on crowds of people] and I'm not going to let this overshadow me."

The Daily News report includes the detail that pictures showing another Jersey City councilman, Jerramiah Healy, naked and passed out on his front porch, were "widely circulated" in 2004.  Healy was elected mayor shortly thereafter.

Link: NBC New York
Link: New York Daily News

Survivor of Attempted Vehicular Homicide Sued for Car Damage

A 17-year-old boy who was hit by a car and then abandoned by the driver has been sued for the damage his body negligently caused to the car.

As we saw a while back (here and here) this shameful practice of individuals not getting out of the way of speeding cars, thus negligently damaging the front end of said cars, appears to be rampant in Europe.  (This also happened in the US not too long ago, but that case involved a negligent dog.)

I used the word "abandoned" rather than calling it a hit-and-run because it was more complicated than that.  The boy, Karel Pravec, somehow ended up out in the woods far from the accident scene.  He survived after managing to crawl back to the road, where he was found.  Since both his legs were broken, it seemed unlikely he had gotten out there under his own power ("Well, if you crawled out, Mr. Pravec, you could have crawled in, couldn't you?  I have no further questions.")  It turned out that the driver, Petr Neisser, had in fact taken Pravec out in the woods and left him there.  Neisser was convicted of attempted murder, but none of that is likely to come in during the civil suit, which will address only the cause of the accident.

That, too, is unclear.  Pravec was walking home from a nightclub, while Neisser had also been at a nightclub and was driving home with his girlfriend.  Everyone involved had been drinking, of course.  A court expert testified in the criminal case that Pravec "stepped into the road unexpectedly," where he was hit by Neisser, who was driving too fast to avoid him.  According to the report, Pravec "flew over the car and fell in the car's boot [trunk] through the rear window."  I assume that was Neisser's story as to how the boy got in his trunk, because he claimed he found out what had happened only after he got home.  "Honey, I was just checking the trunk for no reason now that we are home from the nightclub, and there's a boy in the trunk."  "Hm.  He does look familiar - maybe he's the one we saw flying over the car?"

Niesser responded as any good Samaritan would to finding an injured boy in his trunk -- by taking him out in the woods and dumping him.  He argued later that he had not been trying to kill Pravec, saying that since it was not cold there was no risk he would die of hypothermia.  Just a nice, peaceful night in the woods with two broken legs.  Neisser also said that it was actually good that he took Pravec to the forest, because there was a better chance for someone to find him there than if he had just left him in the driveway.

The unsurprising result of those arguments: a 12-year sentence for attempted murder.

Still unresolved is who will pay for the damage to the car (about $3,000 US), which was owned by Neisser's employer.  While he condemns Neisser's actions, he says the facts show the boy was negligent.  "If you consider a lawsuit against the damage caused by Pravec['s body] immoral," he said, "there is nothing I can do about it.  I insist it is moral and right."  The family does think it is immoral, but is also seeking a new expert opinion on the cause.

Pravec has since recovered fully from his injuries.

Link:  Prague Daily Monitor (in Czech-flavored English)
Link:  Social Services for Feral Children (a blog that reported on this story)

What Would You Name a Magazine for Women Litigators?

If you said "Sue," you win.  Or, at least, you have guessed correctly - you don't win anything.

The ABA Journal reported recently that a new magazine with the excellent name, "Sue: For Women in Litigation," will launch in January.  It is published by Chere Estrin, a former paralegal who also started "Know: A Magazine for Paralegals" earlier this year.

The new name is a lot better than that one.  According to the Journal, Estrin did not come up with the name herself, but rather got the idea from a comment to a blog post earlier this year.  The commenter was anonymous and posted the idea openly, so the name thievery should not be a problem for Estrin.

Among the articles in the magazine's first issue is one called "Girls Just Wanna Have Funds."

Link: ABA Journal
Link: Sue Magazine