Lowering the Bar

"Heavy Hitter" On the Ropes

The Nevada Bar Association said earlier this month that it had received a complaint against personal-injury lawyer Glen Lerner, and that it was investigating.  Lerner is extremely well-known in Nevada, largely because of his ridiculous TV commercials, which have shown him (among other things) spinning like the Tasmanian Devil and dropping a giant phone on litigation opponents.

He was featured here some time ago after the state bar told him to stop calling himself "The Heavy Hitter," saying it implied a guarantee of success, and he threatened to sue.

The bar seems to have backed off on that one -- the Nevada Supreme Court changed the state rules last year, saying that the First Amendment precluded rules against "bad taste" -- but Lerner may have a bigger problem with this complaint, which involves his failure to show up for a client's trial date.  Lerner was scheduled to represent his pool cleaner, Mario Lino, in a trial that was supposed to start on January 22.  Lerner did not show up, saying he was out of state on "sabbatical."

Lino is charged with murder.

Lerner had told the prosecutor that he would not be returning for the trial, and said "if the judge wants to sanction me, she can sanction me."  (She does in fact want to sanction him.)  Lerner told a reporter he had tried to work out a deal with the prosecutor, or at least a continuance, but did not get either.  Solution: don't show up.  "The judge is probably fuming," he admitted.  "But what could I do?"  Well, "you get on a plane and you fly back," suggested the judge (in Lerner's absence), but could only re-assign the case to the public defender.  Lino (right), who faces life in prison for murder, plus a possible concurrent sentence for that haircut, said that no one from Lerner's office would return his phone calls.

Lerner told the reporter that he's been on "sabbatical" for several months, during which he has been writing a book and "re-examining" his life.  "I've been living the life of a rock star for so long," he said, that it was time to unwind and think about things a bit.  That's why he had not had time to prepare for the murder case.  He claimed that by not appearing for the trial, he was acting in his client's best interests.  That is probably a true statement, but not the way he meant it.

This Nevada law blog (which has a separate category devoted to Lerner), has a clip of his most recent ad, which depicted a young Glen Lerner representing the victim of a bully in a schoolyard dispute.  In the "dramatization," the young Lerner forced the bully to hand over his shirt and bike as compensation for a bloody nose.  In real life, of course, the adult Lerner did not show up for his client's murder trial.

Link: Las Vegas Review-Journal (Feb. 6 story on the bar complaint)
Link: LVRJ (Feb. 11 story on the Super Bowl ad)

Police Stop of Ax-Wielding Bike Rider Found Justified

In a classic opinion of which I have just learned, the California Court of Appeal ruled in 1998 that police were in fact justified in detaining a man they saw on a bicycle at 3:00 in the morning, primarily because they noticed he was also carrying a large ax at the time.

Not only are the facts good, but the opinion in People v. Foranyic was written by Justice William Bedsworth, who was profiled in the Daily Journal on February 21 and who is the author of the long-running humor column, A Criminal Waste of Space.  Definitely worth reading.

Unsurprisingly, the appeal arose from the denial of a motion to suppress evidence.  Mr. Foranyic was found to be carrying methamphetamine, along with the ax, but he argued that there had been no "suspicious circumstances" justifying the stop under Terry v. Ohio.  "Thus are we called upon," wrote Justice Bedsworth, "to decide whether police may detain a man with an ax riding a bicycle at 3 a.m."

Answer: yes.

We conclude that a reasonable police officer, considering the totality of the circumstances, would reasonably suspect criminal activity might be afoot upon viewing someone on a bicycle, with an ax, at 3 in the morning. Certainly we would expect a diligent officer to investigate such unusual behavior through the relatively unintrusive means of a detention. This is so even though no recent “ax crime” had been reported.

For while Foranyic insists there was nothing about him which suggested criminal activity, he is unable to suggest, and we cannot conceive of, much in the way of noncriminal activity which is accomplished with an ax in the dead of night. The officer could reasonably eliminate firefighting and lumberjacking from the list of possible pursuits Foranyic might have been engaged in.

* * *

[T]here is some activity which is so unusual, so far removed from everyday experience that it cries out for investigation. Such activity will justify a detention even when there is no specific crime to which it seems to relate.  We view this as such conduct. While it is true that there are many legitimate uses for an ax, they are generally daylight activities.

Emphasis in original.  This is quality judicial work that, especially given the fact pattern, fully justifies an addition to Lowering the Bar's Case Law Hall of Fame.

Link: People v. Foranyic, 64 Cal. App. 4th 186 (1998).

Ginormous Rock at Issue in Engagement-Ring-Retrieval Suit

Sadly, it seems to be all too common for legal disputes to arise over who gets the engagement ring if a wedding is called off.  But not many of those disputes involve a ring worth close to half a million dollars, or a former sister-in-law of the President.

On February 11, Gerald Tsai sued Sharon Bush to recover either the eleven-carat engagement ring he gave her or the $434,000 he says it is worth now.  (He bought it for a paltry $243,040, but she seems to have accepted anyway.)  Tsai gave Bush the ring in December 2006, but their plans to be married on Valentine's Day 2007 did not survive his refusal to sign a prenuptial agreement.  She kept the ring.

According to the report, New York's Civil Rights Law provides that property must be returned if the "sole consideration" for its transfer was a "contemplated marriage" that didn't occur.  A 1968 case directly on point (except that the ring cost $2,450) held in favor of the donor.

But Bush's attorney, Raoul Felder, is already on the offensive.  "We will vigorously defend this case," he said.  That statement was discounted by some, or at least by me, on the grounds that it's what you'd expect him to say.  If an attorney ever makes a public statement saying something like, "We will half-heartedly defend this case while hoping for a settlement," then I will pay attention.  Felder's argument will apparently be that Tsai gave Bush the ring as a Christmas present, not because they planned to get married two months later, and so the statute doesn't apply because the ring was not "in sole consideration" of a contemplated marriage.

Felder was also upset that hard-hearted Tsai had sued just three days before Valentine's Day.  "Valentine's Day is a day you give gifts to your sweetheart," Felder said.  "It's not the day you demand Christmas presents back."  Well, it could be a day you demand Christmas presents back.  In this case, it might also have been the day the statute of limitations would have expired, but that could be a coincidence.  And speaking of days not to do things, I guess if this argument succeeds then nobody will be able to propose at any time during the Christmas shopping season, unless he is willing to take the risk of a later "Christmas-present" defense.

Sharon Bush has been scorned at least once before, by her former husband and presidential brother Neil Bush, who, after 23 years of marriage, broke up with her by e-mail.

Link: On Point News (Matthew Heller)

Practice Tip: Probably Okay to End Deposition Early if Other Side Brings a Gun

On February 12, an attorney representing a man suing NFL running back Reggie Bush said he and his client chose to end a deposition early after noticing that the other side was armed.

"I knew they weren't going to like what they were going to hear, but I never thought they'd bring a gun," said Brian Watkins, an attorney for sports marketer Lloyd Lake.  Lake is apparently suing to recover $300,000 in payments and gifts that he gave Bush while Bush was at USC.  (The fact that these gifts were illegal may be a bit of an obstacle to recovering them.)

The report did not say who was being deposed, but it wasn't Bush, who is scheduled for February 25.  But it wasn't the deponent who had the gun anyway -- it was the bodyguard for Bush's attorney.  The attorney, David Cornwell, claimed later that he felt he needed a guard because Lake, who has a criminal background, has allegedly threatened him and Bush before.  Cornwell said the bodyguard had a permit to carry a concealed weapon, but Watkins said he didn't keep it concealed.

"He made sure we saw it," Watkins said.  Watkins' client said the bodyguard flashed the gun at him in the lobby, and that he opened his jacket later during the deposition.  When Watkins objected, Cornwell agreed to have the bodyguard sit outside the deposition room.  "So then," Watkins said, "he was sitting eight to 10 feet away from Lloyd, outside a glass door with his arms folded, staring in at my client."

Outrageous, Watkins called it twice.  "It's outrageous that he shows up strapped for a deposition," he said.  "That's outrageous conduct in the lawyer world.  Come on, we're lawyers.  I don't threaten people [with guns], I sue them."  Watkins suggested that the handgun was evidence that Bush has a weak case.  "They know the day of reckoning is coming," he said.  "They are panicking."

Cornwell, who has represented many other sports figures including dog lover Michael Vick, did not sound panicky.  Given Lake's background and the alleged threats, he said, "we were advised to take appropriate security precautions when in Lake's presence."  He dismissed the intimidation claims as unprofessional.  "This lawsuit stuff is for grown folks.  Obviously, this crew ain't ready."

The deposition was held at the San Diego office of grown folks Pillsbury Winthrop Shaw Pittman, though Pillsbury said none of its crew was present (it was just hosting).  In a statement, the firm also emphasized that it has a "zero-tolerance" policy for firearms at a deposition.

Link:  AP via NBC Sports
Link:  USA Today

Butt Artist's Case Against Former Employer Will Proceed

"Butt Artist Trial is Set" was the actual headline of the article at the link below, which informs us that a motion to dismiss Stephen Murmer's lawsuit against his former employer was denied on February 15.  Murmer, you may recall, is the teacher who was fired when his school district learned that, in his spare time, Murmer is an artist who paints things with his butt.

According to Murmer's complaint, the district had been aware of his technique since 2004, but the paint hit the fan in 2007 when the students learned about it.  Murmer had at some point appeared on a TV show to demonstrate his art, and a clip from that show later made its way to YouTube.  (Here's a link to the video in question.)

Murmer eventually sued the district, claiming he was wrongfully terminated because what he did with his business on his own time was his business, and constitutionally protected business at that.  (The ACLU is representing Murmer for free.)  In the complaint, which is available from the ACLU via Murmer's own website, www.buttprintart.com, Murmer concedes that uses his "posterior" to paint, but describes his art as building on established traditions within post-modernism:

17. As the artist Stan Murmur, Plaintiff developed the technique of incorporating his own body and the bodies of models as “brushes” or “stamps” in the process of painting, continuing, combining and developing the traditions of, for example, tattoo art (where the human body is used as canvas), and Anthropometry of the post-modern French Artist Yves Klein (1928-1962), who used female bodies as “living brushes" in the process of creating art.

18. Plaintiff has thus created paintings by using his posterior and other body parts as a stamp with which to imprint paint onto a canvas.

19. With this technique, which includes sitting in paint and then pressing his buttocks onto a canvas, Plaintiff has created paintings which range from depicting stylized flowers to portraiture and patterns.

20. These seemingly simple paintings thus have a surprise in store for the viewer: only gradually, if at all, comes the realization that the image has been created with monotypes of the human body, a realization intended to reverberate in the viewer, setting in motion a process of self-discovery of one’s own personality traits, oscillation between watching a flower (or portrait or pattern) and one’s preconceived bias of the human body. The artist’s hope is that the viewer thus discovers his individual personality characteristics through visual response – as well as his personal views on
the concept and the purpose of art.

Once you're finished oscillating, why not contact Mr. Murmer to commission some work?  If you've always wanted to have your portrait painted by someone using his ass, now's your chance.

Last Friday (Feb. 15), Judge Robert Payne heard a motion by the school district to dismiss the teacher/artist's case, and after about an hour of oral argument he denied the motion.  Trial is set for March 11.

Hopefully, Murmer will act as his own sketch artist during the trial.

Link: NBC12 (Virginia)
Link: Chesterfield County (VA) Public Schools