Lowering the Bar

LucasFilm Employee Alleges She Was Called An "Ewok"

From yesterday's report of filings in San Francisco Superior Court:

Tabitha Totah v. Lucasfilm Entertainment Company Ltd., CGC-09-490959 (7/30/09)

Employment complaint for race discrimination, sexual harassment and wrongful termination. The plaintiff was fired because, as her supervisor said, "You needed to be taught a lesson." The plaintiff, who has Arab ancestry, overheard her boss call someone a "dirty Arab," another person "so gay," and the plaintiff an "Ewok."

Not to belittle the other allegations suggested here, which if true would be heinous and actionable, but please let me know if calling someone an "Ewok" now constitutes discrimination.  Of course, if you work at Lucasfilm, these may be very well be "fighting words."

On the other hand, if anyone there has been called "Jar Jar Binks," please let me give you my card.  No one should have to put up with that.

Judge Who Lost Pants Loses Another Suit

It seems that our old friend Roy L. Pearson, Jr., he of the $65 million pants, has recovered sufficiently from losing that case to get on with losing another one.  This one was a wrongful-termination lawsuit against the District of Columbia, his former boss (Chief Administrative Law Judge Tyrone Butler), and other alleged miscreants.  A federal judge dismissed all of Pearson's claims on July 23.

As you may recall, Roy Pearson was the ALJ who pursued a legal crusade against his local dry cleaners for allegedly losing a pair of his pants and then refusing to honor their posted "Satisfaction Guaranteed" policy to his full and complete satisfaction.This would not have been newsworthy except that, by his calculation, he was entitled to $65 million in damages.  To be fair, he did revise his figures later, and from then on always cited a much more reasonable figure of $54 million.  See "Judge Drops Pants; Suit Still On," Lowering the Bar (June 6, 2007).  His ultimate recovery in the case was easier to calculate: zero.

In the meantime, Pearson's term in office had expired and he was not reappointed. Lawsuit followed.

While the pants were not the focus of this lawsuit, they do appear in it, much as their ghostly form will continue to haunt Pearson for some time.  Pearson alleged that by refusing to appoint him to another term, defendants had violated his rights to free speech, equal protection and due process of law (among other things).  He had a long list of demands, including reinstatement and, of course, not less than $1 million in damages per defendant.  Again, no, the court ruled.

Pearson's free-speech claims involved allegations that he was fired for trying to reform the Office of Administrative Hearings, where he worked.  Pearson's initial term began on May 2, 2005, and by June 20 he had already drafted and circulated a 19-page memo full of complaints.  (Like I always say, there's no better way to get settled in a new job than to circulate a memo extensively criticizing what everybody has been doing.)  Within another month, he had taken his complaint to a supervising commission, and a week later, he wrote the mayor.  In that letter he further endeared himself to the boss by telling the mayor that Chief Judge Butler had "deeply rooted character, judgment and ethical deficiencies," "corrupt ethics, demonstrably poor judgment and failed leadership," had led a "gangsta effort" to intimidate him and engaged in other "astoundingly inappropriate conduct."  Pearson had been employed for about nine weeks at this point.

Remarkably, when Pearson asked to be appointed to a full ten-year term a few months later, Chief Judge Butler said he did not oppose the appointment.  (He did suggest that Pearson might want to buff up his "teamwork" skills a bit.)  On March 8, 2007, Butler confirmed the recommendation, and the next day, Pearson graciously sent a group email to his coworkers encouraging them to "compile a record" that would "make it difficult for CJ Butler to knife [them]."

He also compared his personal struggle to the civil rights movement, which was a nice touch.

The court's rejection of Pearson's claims was pretty straightforward, given those facts.  Most comical was Pearson's argument that his First Amendment rights were violated because he had been fired partly for pursuing the pants case, which he insisted was a "public interest lawsuit."  Well, I can vouch for the fact that there was public interest in his lawsuit, but that's not what he meant.  As the court put it, "[t]he mere fact that plaintiff characterizes his status as that of a private attorney general" does not change the fact that he was pursuing "a personal vendetta against a dry cleaners over a pair of pants."  Sadly, the failure of Judge Pearson's crusade means that the next citizen who suffers from unfair pants deprivation will be forced to walk the same lonely road alone.  And with no pants.

Pearson, who has 30 days to appeal, will.

Link: Pearson v. District of Columbia
Link: Law.com

Punch Another Monopoly Player, Go Directly to Jail

That headline is a little obvious, but it's really the only one for this story.

Police in Fraser, Michigan, reported that a 54-year-old man assaulted a female friend with whom he was playing Monopoly on Saturday night.  Police appeared to believe that the woman's offense, refusing to sell the man Park Place and Boardwalk, did not justify being punched in the face.

The angry Monopoly player, who probably had also gotten stuck using the thimble, was arrested and charged with misdemeanor assault and battery.

This is the most serious board-game-related assault of which I'm aware since the 2007 incident involving a fatal dispute over a game of Yahtzee.

Link: AP via SF Gate.com

Swine-Flu Defense Fails In DUI Case

Back in the day, as I recall, we blamed (or tried to blame) el Niño for pretty much everything, but now it seems to be swine flu - I mean, the H1N1 virus.  At least, blaming H1N1 is apparently all the rage in New Zealand, where a woman recently blamed the virus for her legal troubles when she appeared in court to answer a DUI charge.

According to this report, the woman "blew 130 micrograms above the legal 400mcg per litre of breath," and I don't know what the hell that means but it's apparently against the law in New Zealand.  She admitted she had had three glasses of wine, and her lawyer then deployed the H1N1 Defense.  "She had swine flu," the woman's lawyer told Judge Kevin Phillips.  "She was just getting over it . . . and she thinks because she had the flu [the drinks] may have hit her harder."

Forget it, said Judge Phillips, who is apparently tired of the virus getting a bad rap.  "Swine flu seems to be the 'in' submission for everything at the moment," he said.  "I reject all that."  Phillips fined the woman several hundred New Zealand dollars and suspended her license for six months.

Looks like those of you planning to blame "swine flu" for DUI, missing work or being dead may need to find a new excuse.

Link: Sydney Morning Herald

Another Animal-Attack Lawsuit Fails: Humans Now 0-5

On Point News reports that last week, a West Virginia jury rejected the claims of a man who blamed his employer's negligence for injuries he suffered when he was attacked by a goose.

Based on my studies of somewhat similar cases, studies that I should mention are not even remotely scientific, this makes the score Animals 5, Humans 0.

Aaron Richards, a train conductor for CSX Transportation, alleged that he had been inspecting his train at a railyard one night when, suddenly, he heard a hissing noise, and a goose-shaped apparition loomed out of the darkness and assailed him, wings flapping madly . . . okay, I'm embellishing.  To quote the complaint, "a goose which was previously known by Defendant to have nested in its yard area suddenly jumped out from under one of the railcars, striking Plaintiff, and causing him to fall resulting in injuries and damages as herein set forth."

The damages therein set forth were nearly $24,000 for goose-related but ultimately self-inflicted injuries.

Richards was suing under the Federal Employers' Liability Act, which has been construed to allow plaintiffs to get to a jury with very little evidence of employer negligence.  He claimed that the bird had in fact been the proximate cause of his injuries, and that CSX knew it was nesting in the railyard.  His evidence of the company's knowledge was that the same bird (or possibly an impostor trying to frame the other one) had startled another worker in the same railyard just four days earlier.  Yet despite this savage startling of one of its employees, CSX did nothing.

Richards' attorney argued that CSX should have removed the goose's nest (and, presumably, the goose itself), marked the nesting area with orange cones, or (and I think this is the obvious solution) better trained its employees to report such attacks so that action could be taken.  To be fair, though, that other guy had been attacked just four days before.  It can't be easy to get a goose-attack-report training consultant on such short notice.

CSX did remove the nest after Richards was attacked, and goose experts seem to have concluded that it had been constructed some time ago.  But the jury still appears to have accepted the company's argument that there was no evidence it actually knew of the hazard.

In calling this the fifth loss for humans, I am also counting the alleged squirrel attack at a mall in Skokie, Illinois; a previous goose attack at a mall in Rockville, Maryland; a suit against Lowe's Hardware by a woman who claimed a bird flew into her head while she was in the outdoor garden area; and a similar case involving a bat-induced fall near a Sears store in Texas.  (No link for that one; my firm represented Sears.)  I am not yet counting the case I reported on in May, in which a woman shopping at Wal-Mart said a nutria named "Norman" scared her into running over her own foot, because I am not sure that complaint was ever served.  But I suspect animals, and those who harbor them, will shortly be 6-0.

Link: On Point News

Judge Dismisses "Super American Grand Jury" Indictment Against Obama

A federal judge in D.C. recently dismissed a grand-jury indictment charging President Obama with treason.  You may not have been aware that the President had actually been indicted for treason, which normally would be fairly big news.  But it appears that this indictment was technically defective because the "grand jury" that issued it had not been convened by a court or prosecutor.

It was just some guys who got together and decided to indict the President.

As you might have guessed, the do-it-yourself indictment was based on the allegations that Barack Obama is not really a "natural-born citizen" and so does not qualify to be president.  These allegations have so far had zero success in court but have continued to be "raised, vetted, blogged, texted, twittered, and otherwise massaged by America's vigilant citizenry," as Judge James Robertson put it a couple of months ago.  But hey, if you can't get a prosecutor to convene a grand jury to look into something, why not just make your own?  Constitution don't say you can't!

These 176 gentlemen did just that.  On June 24, they convened themselves into a grand jury (presumably meeting at a mall food court somewhere, but I have no proof of that), and voted to charge the President with treason.  And this was not just any grand jury, it was extra-grand.  No, wait: super-grand.  In fact, they declared themselves a "Super American Grand Jury."

You might think that charges brought by a Super American Grand Jury would be heard in a Super Federal District Court (with decisions appealable to the Super-Duper Circuit Court of Appeals and the MegaSupreme Court) but they filed in the regular D.C. federal court.  So the Super Americans got their indictment dismissed by a regular federal judge who has only the powers conferred on him by Article III of the Constitution (though these powers should not be underestimated).

"The individuals who have made this presentment," the judge wrote, "were not convened by this Court to sit as a grand jury nor have they been selected at random from a fair cross section of this district," another requirement that prevents self-convening.  "Any self-styled indictment or presentment issued by such a group has no force under the Constitution or laws of the United States."

This is really too bad, since I would very much like to go around indicting people.  I guess the problem is that you might need some help enforcing an indictment, depending on who you want to indict.  And you generally have to rely on regular Americans for that.

Link: The BLT: The Blog of Legal Times

Law Review Article Titles: Stop the Madness

I know there are a lot of examples of this kind of thing out there, unfortunately, but I just happened to come across this one recently:

YOU'VE GOT TO BE KIDNEYING ME!: The Fatal Problem of Severing Rights and Remedies From the Body of Organ Donation Law, 74 Brook. L. Rev. 543, 580 (2009).

Not that organ-donation law isn't a real hoot, probably -- I've just never really been a fan of puns.

Please feel free to send in other examples of bad titles, or any other items you would like to share, if only as part of yet another vain effort to purge the memory of them from your own ever-more-haunted legal mind.  Hey, it works for me.  That, plus setting things on fire.

Appropriate-Shoe-Motion Case Ends in Mistrial After Jurors Read About Motion

A couple of weeks ago, I wrote about a case in Florida in which the plaintiff's attorney had filed a motion to compel defense counsel to wear appropriate shoes.  Bill Bone argued in the motion that it was "well known in the legal community" that Michael Robb wears shoes with holes in the soles during trial, which Bone believes to be a "ruse" to gain sympathy with juries.  That motion was denied, and the case proceeded.

Turned out, though, that it had proceeded only until the jurors found out about the unusual motion, which they did on June 29 by reading a column about it in the Palm Beach Post.  See Frank Cerabino, "Does lawyer who bares sole have an ace in the hole?" (June 27, 2009).  One of the jurors came across the column, read it all (in violation of the judge's instructions not to read any outside information about the case), and then brought the paper to court so all the other jurors could violate the judge's instructions too.

When this came to light, the judge talked to the jurors about it, and they denied that it had influenced them in any way.  But because the jurors had not followed instructions, he felt compelled to declare a mistrial.

For a reason that was not clear from the report, however, the judge did not tell the jurors about the mistrial and allowed them to deliberate and reach an "advisory verdict."  The rules do allow advisory verdicts in some situations, but since a mistrial had already been declared here, I don't know what this jury would have been advising about.  The only clear effect of the advisory verdict, therefore, was to make the plaintiff and his lawyer feel even worse, because the jury "awarded" them $2.2 million that they were now unable to collect.  The plaintiff's lawyer said he and his client had both "cried real tears" after the mistrial, and that's not at all hard to believe.  Losing a shot at $2.2 million would cause real tears to shoot out of my eyes, too.

It also was not entirely clear which side asked for the mistrial, which as noted was declared prior to any verdict in the case.  A followup by Frank Cerabino, the columnist who wrote the June 27 story, suggested that defendant's counsel had moved for it, saying the story had harmed the defense; although as Cerabino noted, defendant's counsel had been more than happy to answer questions for the column in the first place.

Ironically, the end result of all this is that Robb's beat-up old shoes have worked their (alleged) magic again by indirectly allowing his client to escape a $2.2 million verdict.  Maybe they won't be retired after all.

Link: Palm Beach Post

How to Avoid Jury Duty, #7: Die

A woman in Arlington, Washington, said her husband would not be reporting for jury duty as ordered on June 24, because he had been dead since 2005.

Finally, an absolutely ironclad excuse for getting out of jury duty.

County officials said they did their best to keep the dead from being summoned, but that it was impossible to keep this from happening because the master lists are compiled just once a year, and jury-duty lists are assembled with two to three weeks of lead time.  If a potential juror dies during that time, therefore, he or she may still be called to serve (presumably as an alternate).

The officials acknowledged, however, that the "lead time" explanation did not explain why a man dead for four years would still be on the list.  One insisted that "the probability of something like this happening is not major, if at all [sic]," but did grudgingly concede that the risk of the thing that had just happened was "obviously not non-existent."

The dead man's wife, shown above looking awfully cheery for somebody who is holding up a relative's death certificate, was amazed that this sort of thing still happens.  And not just partly amazed, either.  "It's totally amazing," she said, "that even with modern technology, we can't manage these records.  If they can't keep track of [dead people], how can they keep track of criminals, or monitor sex offenders?"  Ma'am, this is a nation that didn't get Nelson Mandela off its no-fly list until 2008, so this should not be even mildly amazing.

If you would prefer to try an option other than death to avoid jury duty, you might consider #2 (Bring a Sword to the Courthouse), #4 (Be Mr. T), or #5 (Tell the Judge You'd Rather Count the Wrinkles on Your Dog's Balls than Serve on a Jury).  Warning: At least two of these three carry a significant risk of jail time, but all have been proven to work.

Link: Arlington Times (photo above is courtesy of same)

Man Has Perfectly Believable Story About Why He Was Naked In a Cemetery

Oh, for the simpler times when we could all leave our doors unlocked, our phones weren't all tapped, and the authorities were less cynical and would accept at face value your explanations for why you were butt-naked in a cemetery on a Sunday afternoon.  Alas, those days are gone.

An off-duty police officer in Elkhart, Indiana, said he was jogging near a cemetery on July 12 when he noticed a naked man get into a truck and drive away.  This industrious officer, apparently suspecting some sort of foul play, noted the truck's license number and tracked the man down.

Probably somewhat surprised that law enforcement had allocated any resources to come interrogate him, what with the National Threat Advisory still at "Elevated," the man did not have a good story prepared.

It began to come apart towards the end of his first sentence, when he said he had been at the cemetery to "check on his in-laws' graves."  Yep, just stoppin' by to see if the old in-laws are okay, there in their graves and all, in case somebody has been grave tamperin' or possibly they weren't one hundred percent dead yet.  I mean, can you imagine?  Not likely but you never know.  It was sort of naggin' at me, like when you think you left the iron on?  So I thought I'd come by to check.

Fair enough, but there was still the nakedness to explain.

The man said he had been golfing all day, and noticed when he stopped to check on the in-laws that his underwear was wet.  (Why he had been golfing in his underwear in the rain is not yet clear.)  He had just undressed in the truck, you see, because of the wetness of the underwear, and such like, and so forth.

He then explained that, once naked, he had left the truck because he "wanted a closer look at some flowers."  The kind that grow on your in-laws' graves are beautiful this time of year.  And he had to leave the truck to get this closer look at said flowers because he did not have his glasses with him.  Yes, that did make golfing difficult, thanks for asking.  So, you see, officer, that's really all there was to it.

I'd have let him go just in exchange for having this story to tell, and because the man had probably suffered enough, but this officer felt differently.  The man was charged with misdemeanor public indecency and may face charges of unlicensed semi-nude rain golfing.

Link: msnbc.com