Monday, December 2, 2013

Feeling the heat?

Friday, November 29, 2013

Are you a Fell?

As part of a court case to quiet title in land off Broadway, in Fells Point, Maryland, we have posted notice. If you are a descendent of the original Fell family that settled this area, we may be suing you!  Call us!

Saturday, November 23, 2013

Don't settle for less, you may already have a deal.

Here's your riddle of the day: When is an unsigned settlement agreement really a final settlement agreement?

Answer:  When a judge is persuaded that all the material terms of the deal are written down.

A November 1, 2013 decision of the Maryland Court of Special Appeals affirmed a longstanding belief in the legal community that the absence of a final document is not fatal to a deal.

This case caught my attention because is had elements that are common to our real estate litigation practice- two adjoining land owners disagreed over ownership of several dozen parking spaces used by their tenants. One sued the other, and the parties began to negotiate a settlement while the court case was squeezing through the circuit court.  As is common in these cases, the court deadlines were pushed back, by agreement, to accommodate the continuing settlement negotiations.

The two sides exchanged written documents, starting with a "letter of intent" that outlined the key terms of the deal, with the promise that both sides would sign a "final document" containing all terms. But as is also common, one side backed out of negotiations.

The reasonable folks pressed to conclude the deal, and were forced to sue in the circuit court to enforce what was perceived to be a settlement of the original dispute.

What a mess!

The circuit court ruled in favor of the agreement, and the appellate court affirmed that decision.  The parties had a final deal, even though all the details had not been fully discussed, and even though a final document was not executed.

Can you be forced into a settlement? Not really.  What you should take from this decision is that an agreement exists when all the MATERIAL terms are established. Think of a sale of a box (full of desirable goodies and widgets).  If you and the seller agree on the contents of the box, the price of the box, and the date of sale, then you likely have a deal.  Later disagreement on the color of the box, whether it arrives by wagon, truck or boat, are not necessarily material to the deal and will not bar enforcement by one side or the other.

Think you have a deal? Tell us all about it.

Tuesday, October 15, 2013

The casual criminal is everywhere.

This fellow was filmed in my home neighborhood, last night. He is just another in a long line of casual thieves who wander through Baltimore in the wee hours of the morning.

And judging from the flashlight and calm demeanor, this one is practiced and professional.

And this next one, merged from two vantage points, shows a distinguished citizen picking up a UPS package from another neighbor's front stoop. Why go to the mall, when it's all delivered to our/his doorstep?

"The common argument that crime is caused by poverty is a kind of slander on the poor."-- H.L. Mencken.

Friday, October 11, 2013

Maryland's New Distracted Driving Law

                On October 1, 2013, Maryland’s new “distracted driving” law went into effect.  The law (Md. Transportation Article §21-1124.2) promotes “use of handheld telephone while driving” from a “secondary offense” to a “primary offense.”  The critical difference between the two being that a police officer may not affect a traffic stop based solely on a secondary offense (e.g. even if the cop sees you doing it, so long as you aren’t doing anything else wrong, he can’t stop you).  A police officer may affect a traffic stop for a primary offense.

                Practically, what does that mean?  First, it means you can be stopped and ticketed if a cop sees you driving while chatting, texting, or updating your status while driving.  The penalty will be a small fine for first-time offenders, with penalties increasing dramatically for subsequent offenses.  Second, it means the police will have ample more opportunities to stop you.  And once stopped, the police will run a warrant check, verify that your driving privileges are not suspended or revoked, and potentially search your vehicle (either by consent or otherwise).

                What should you do?  Stop using the phone while you’re driving.  ESPECIALLY if you have something you’d rather not share with the police—like that your license was revoked, that you’re under the influence of drugs or alcohol, or that you’re transporting something illicit.  If you must use your phone while driving, be sure to have Young & Valkenet on speed-dial.

Friday, August 30, 2013

The Real Judges of New Jersey

The nationwide debate about limits on texting while driving blew up in an August 27, 2013 New Jersey appellate decision. A three judge panel for the Superior Court ruled that the individual SENDING a text to the driver of a car, who is then in an accident while reading the text, can be sued for injuries caused in the accident.

This is quite an expansion on the tort concept of reasonable forseeability.

Kubert v. Best includes this grisly description of the accident:

On the afternoon of September 21, 2009, David Kubert was riding his motorcycle, with his wife, Linda Kubert, riding as a passenger. As they came south around a curve on Hurd Street in Mine Hill Township, a pick-up truck being driven north by eighteen-year-old Kyle Best crossed the double center line of the roadway into their lane of travel. David Kubert attempted to evade the pick-up truck but could not. The front driver's side of the truck struck the Kuberts and their motorcycle. The collision severed, or nearly severed, David's left leg. It shattered Linda's left leg, leaving her fractured thighbone protruding out of the skin as she lay injured in the road.

Best stopped his truck, saw the severity of the injuries, and called 911. The time of the 911 call was 17:49:15, that is,fifteen seconds after 5:49 p.m. Best, a volunteer fireman,aided the Kuberts to the best of his ability until the police and emergency medical responders arrived. Medical treatment could not save either victim's leg. Both lost their left legs as a result of the accident.
Here is the bike, after the accident:

The Kuberts sued the driver, who was described as "steering with his elbows," and his 17 year old girlfriend. It was alleged that she sent him a text moments before the accident, and that the driver was distracted by that text at the moment of impact.

The claim against the girlfriend did not get to the jury. The trial court kicked the claim out on the defendants motion for summary judgment. The appellate court affirmed the grant of summary judgment, but said that a remote texter CAN BE SUED for causing an accident if the texter actually knows, or has a special reason to  know that the driver of a car will be distracted by the text.

It appears that routine discovery will now include a subpoena for all of your cell phone records on the day of an accident.  And any texts that were received by your phone (but not necessarily read by you) will permit a good faith claim against the person who was texting you. It will remain a matter of later proof to determine whether your correspondent knew or had special reason to know that you would be distracted (if you read the text, at all).

In this case, there was evidence that the driver was "steering with his elbows" with his head down. But what if there were no such testimony?

I once helped defend a railroad crossing accident case where the dead driver's contributory negligence was demonstrated by witness testimony that the driver and passenger's heads were turned toward each other, as if in conversation, as they were obliterated by the locomotive. But absent that testimony, who knew? The only other evidence was an absence of skid marks.

It will take a few more lawsuits to flesh out the New Jersey court's pronouncement of what is now possible to allege in a tort case (that's right, why limit the ruling to auto accidents?  What if an errant text causes Jethro to lose control of his riding mower, and he buzzes over the neighbor's champion poodle?).

Ideally, there would be no more cases. Just shut your phone off. I'll hit you back at the next rest stop.


Monday, August 26, 2013

Even a judge needs some self-control.

This criminal defendant was not pleased Judge Gary Bennett  imposed a "no contact" order as a condition of her pretrial release on assault charges. But Judge Bennett went a bit nutty by imposing 300 days of jail time just because the defendant was disrespectful.


In Maryland, similar conduct by a judge was strongly rebuked.  Where a criminal defendant received a similar contempt sentence for mouthing off in court, the appellate court rolled back the sentence.  A judge must give a Maryland defendant a chance to cool off and purge himself/herself of the contempt.

In lay terms, that means the defendant needs time to cool off and apologize. In this case, Judge Bennett could have sent this woman back to lock up, called the rest of his docket, and returned to her in an hour or so.  She could have then been given a chance to apologize. But by the end of this video, both parties could have used a bucket of ice water over the head!

And like the late-night advertisements say, BUT THERE IS MORE!  On June 2, 2014, a Brevard County, Florida judge assaulted a public defender after an argument in the courtroom.
The day after, the Chief Judge issued a public apology for this conduct. In my view, however, the lawyer was largely responsible for igniting the fight by accepting the judge's invitation to meet in the hallway, where the punches were thrown. At that point, the lawyers only civil response should have been "thank you, judge, may I be excused?" They could repair the relationship over dinner, through the local bar association's omnbudsman program, or a civil phone call. Shame on him!

Tuesday, August 13, 2013

Beating back the IRS

Court cases against the IRS are always "David versus Goliath" battles. The IRS takes the most extreme positions, and will not compromise even one punctuation mark during the cases.  It is a fight for every dollar.

And we win.

On August 12, 2013, Judge Hollander issued her memorandum order affirming our clients position. In Maryland, an unrecorded or late recorded deed of trust will have priority over a recorded IRS lien.

Congress has a law that incorporates and applies Maryland state law to these disputes. But the IRS created its own internal regulation, hoping to gut the Congressional statute. The IRS internal regulation says that Maryland state law, with it's "relation back" principle of recording, does not apply in disputes with IRS liens.

Judge Hollander disagreed.

Congress was clear- Maryland state law will apply to these disputes. The IRS cannot change a law passed by Congress that is not ambiguous.

The next case may well turn out different. But for today, we sip a fresh cup of coffee and share in our client's good fortunes.

Sunday, August 11, 2013

The grass may be greener, but the bear.....

Every vacation trip leads me to consider a possible life change. When in Key West I consider the continued practice of law in Margaritaville. In Las Vegas, I consider a little family law practice on "The Strip.

And when I visit family in the Berkshires. I consider some woodsy real estate practice, or some jet ski DUI work. But the "perps" here are of a different class, entirely. The Otis Gazette, reported police response to a bear attack on a parked car.

I'd leave that case to the public defender.

Wednesday, July 31, 2013

Where's Waldo? Nevermind, we found him.

Every time you leave your house, you check your pockets to make sure you have the essentials: wallet, keys, and government tracking device, right?  Wait, what was that last one again?  Oh, your cell phone?  Yes, it’s extraordinarily useful in sending tweets to Justin Bieber, posting pictures of your meals on instagram, and stalking exes on facebook, but the U.S. Court of Appeals for the Fifth Circuit recently identified a new use: government tracking.
Police in Texas asked a federal magistrate to force a cell phone company to provide the antenna tower and sector for certain cell phone users who were being investigated.  In layman’s terms—the police wanted the location of the cell phone users.  The federal magistrate decided that the police needed a warrant to get such information.  On appeal, a federal district court judge agreed—if the police wanted the location of the users based on the cell phone company’s records, they needed a warrant supported by probable cause.

On appeal, the U.S. Court of Appeals for the Fifth Circuit, in a 2-1 decision, ruled that police do not need a warrant to obtain the location of cell phone users from their cell provider’s records.  The majority held that whenever a cell phone user broadcast information (e.g. sent a text message, made a phone call, or accessed the internet) to a third party (after all—we don’t own our own cell towers), that user lost his expectation of privacy.  In other words—if you want to keep your location private—don’t use a cell phone.

The practical response by most people to this decision will be—“eh, why do I care if the government knows where I am, or where I’ve been?”  For those charged with a crime, however, that information can be very damning.  Evidence of a user’s location can be used to establish an incriminating pattern (e.g. trips to/from a buyer or seller of narcotics), defeat an alibi, or establish proximity of the accused to the scene of the crime.

So next time you’re sending a text message, making a phone call, or updating your facebook status, to tell your friends where you are, just remember—the government already knows.

Monday, July 29, 2013

Maryland bars are not automatically responsible for death caused by a drunk customer.

On July 25, 2013, Maryland's highest court affirmed that a bar has no duty to actively prevent mayhem caused by it's drunk patron who kills or maims with his car. The case is Warr v. JMGM (doing business as "Dogfish Head Alehouse "), and it affirms long standing principles of Maryland law even while bringing tears to the eyes.

Ten year old Jazimen Warr was killed by a drunk driver whose chosen watering hole was the Dogfish Head Alehouse.  Here's her picture, as it appeared on an NBC affiliate's website. Her sister and parents were also injured in the crash.

The driver, Michael Eaton, was driving his Range Rover on a suspended license, and evaded police for 14 hours after leaving the scene of the accident. The manhunt included dogs and a police helicopter. While the police searched, young Jazimen was pronounced dead at the hospital.

The Warr family sued Dogfish Head Alehouse in 2010, knowing that Maryland law was stacked against them despite a case built on the following facts, as alleged in the complaint:

The evening of Aug. 21, 2008, Michael Eaton arrived at the Gaithersburg bar and restaurant, and started a tab. One witness told investigators he stayed for six hours. Sometime after 10 p.m., according to state police records, he paid for 14 bottles of Corona and two "Lemon Drop" shots.
He opened a second tab -- three Coronas and a shot of tequila -- closing it out at 10:55 p.m., according to the police records. He purchased drinks for himself and others, according to police records.
After leaving the bar, records say, Eaton climbed into a Range Rover and headed south on Interstate 270, reaching an estimated speed of 88 to 98 mph. He plowed into the back of the Warr's Jeep, kept going, left his vehicle, fled on foot, made his way to a hotel and turned himself in the next afternoon.
Bar employees later testified that Mr. Eaton was a habitual drunkard, but that they shut him off by 11:00 P.M. and offered to call him a cab.  He refused and somehow stumbled to his Range Rover.

The Circuit Court for Montgomery County granted a motion for summary judgment made before trial by Dogfish Head Alehouse. This is a motion that is filed after all the facts are discovered, and it requests that the court consider the current state of Maryland law to determine whether the Plaintiff has any chance at winning at trial. The court applies the existing law to the undisputed material facts, and makes a decision- The Plaintiff either has a shot at trial, or the Plaintiff has absolutely no shot to prevail at trial. 

Maryland law has long prevented persons injured by bar patrons from suing the establishment where they got drunk. Maryland has long resisted the national trend to hold sellers of alcohol responsible for the death and destruction caused by drunk patrons. The Legislature has elected not to create statutes that impose civil liability for bars because of the acts of their drunk customers, and the courts have refused to impose duties on their own. The law since at least 1951 has been this simple declaration, found in a Court of Appeals decision:
Simply put, we just do not recognize a duty; instead we adhere to the principle that "[h]uman beings, drunk or sober, are responsible for their own torts.
The Warr trial judge was bound by this law. He was duty bound to apply this declaration of law to the facts of the Warr case, regardless of the horrific death visited on Jazimen by Mr. Eaton. The trial court granted summary judgment in favor of Mr. Eaton because his victims had no shot at trial. 

The Court of Appeals pulled the case up from the intermediate appellate court to decide, as a broad matter of Maryland public policy, whether this principle of law would be declared dead letter in Maryland, or whether it would continue to insulate alcohol sellers from civil judgments where even states heavily favoring individual rights, such as Texas, Arizona and Pennsylvania, have adopted some form of "dram shop" liability.

The law will remain unchanged in Maryland for the foreseeable future. The Court of Appeals found no good reason to change the law, on it's own, while inviting the legislature to re-visit the issue. The court noted that while the politicians have elected to impose criminal penalties on bars for serving under aged or intoxicated customers, they have not taken any action to impose civil penalties.

But consider this: Beer, wine and liquor are taxed at rates ranging from nine cents to $1.50 per gallon.  In 2012, the State of Maryland collected over $31 Million dollars on these three items alone. It is all documented in the Alcohol & Tobacco Tax Annual Report. Tax revenue from the sale of alcohol is simply intoxicating to the State's politicians.

This decision does leave open a slight window for judicial change in this law. If a future case involves a bar employee actively promoting the act of driving, perhaps by stuffing the drunk into the driver's seat, the reasoning of this court would impose some liability on the bar employee and perhaps his employer. We will just have to wait and see.

Thursday, July 11, 2013

Don't spoil the evidence by altering or deleting your social media.

Don't delete your Facebook photos if you file a lawsuit related to the content of those pictures. 

A Virginia lawyer just paid off the sanctions imposed on him in 2011 for helping his client "clean up" a Facebook page by deleting 16 pictures showing the client doing stupid things. The Virginia state court imposed over $700,000 in sanctions on the lawyer while awarding several million to his client on the underlying claim (so, the client won, but the lawyer lost most of his fees otherwise earned in the case).

The concept is called "spoliation of evidence." It simply requires that a litigant preserve the status quo, and covers all manner of documents, electronic data and social media.  For example, in a breach of contract case you should not destroy or alter letters, memos or e-mails about the contract.  Even normal archiving and destruction of business information must be frozen during the lawsuit. This is a huge trap for the unwary.  Large entities have "litigation hold" procedures that are followed.  But small and mid-sized companies who are not as litigation saavy often fail to get word out to all employees.

Consider, for a moment, the vast quantity of data on your personal and company Twitter, Facebook, Linkedin, and Tumblr accounts, in addition to personal and business texts, e-mails, phone logs and all their back up files.

Courts deem it very, very unfair to the judicial process when one litigant destroys evidence, and thus alters the evidentiary landscape. It creates a side-show to the main case, and can result in orders limiting issues and damages, in addition to imposition of costly sanctions on the responsible parties and lawyers. 

More importantly, every case requires that we deal with bad evidence, and ill-conceived memos and letters.  Business people do not live to litigate, and behave as normal folks who write angry e-mails and letters that may cut against their legal interests. Experienced civil litigation lawyers know this is common, and we are well equipped to handle the less-than-perfect case. 

Let us litigate the main case for you, not the costly sideshow.

Monday, July 1, 2013

Your Maryland home can still be your smoke filled castle.

June 27, 2013 is the day you came dangerously close to losing the right to smoke in the privacy of your own home.  This little decision almost slipped by me, except that I was finally catching up on a week's worth of professional reading after a very active day in court.

In the case called Schuman v. Greenbelt Homes, Mr. Schuman sued his neighbors and others for nuisance caused by his neighbors act of smoking cigarettes in the privacy of their own home, and on the rear patio behind their home. Mr. Schuman complained that odor and nicotine invaded his space, increased his risks for illness related to second hand smoke, and diminished his property values.  Mr. Schuman sought a court order barring his neighbors from smoking in their own home, or on their own patio.

Don't laugh, Mr. Schuman could have been YOUR neighbor, and he may not have liked your charcoal smoker or the scented oil in your tiki torches.

The homeowner's cooperative to which both parties belonged sealed cracks between the adjoining units, and the smoking neighbors even consented to Mr. Schuman's demands that they cease the lawful activity of smoking cigarettes in their own house.

The smoking only continued on the outdoor patio of the neighbor's unit (a few cigarettes each night).  Mr. Schuman continued to complain that even with his windows closed he could smell cigarettes (contrary to other neighbors testimony that smoke did not penetrated their closed windows).

Mr. Schuman's circuit court lawsuit against his neighbors alleged, among other things, that the lawful activity of smoking on private property (a place where it is not regulated by the government) unreasonably interfered with his use and enjoyment of his property. Trial lasted at least a week, and included medical and air quality expert testimony. Mr. Schuman argued that even one cigarette on the patio was too much, and that he refrained from leaving his house for fear that his neighbor would light up and smoke.

As silly as all this sounds, there is a growing body of case law across the country finding that cigarette odor may be, at times, an unreasonable interference with the property rights of others.  Page 22 of the court opinion collects some of the cases for you. And it is in these obscure decisions where your property rights are eroded, over time.

But to Maryland's credit, smoking on your patio is not yet a nuisance which diminishes the use and enjoyment of an adjoining property. This court noted that such a ruling (on the facts of this case, at least) would effectively outlaw smoking in the privacy of your home, a place that even Maryland's legislature has not yet attempted to reach.

We live in a complex world.  This case preserves some balance between the property rights of adjacent owners.....for now.

Friday, June 21, 2013

Breaking the Amish

Economic loss to innocent third-parties is often the collateral damage from contract disputes that land in court. Lapp’s Fresh Meats, an Amish-run stall at Joppatowne Plaza Shopping Center, has been sent packing.  According to a federal judge’s ruling last week, the popular vendor, which moved into the Joppa Market Place over two years ago, must shut down by June 23, 2013. The trusting Amish did nothing wrong. They simply got caught in the cross-fire between their landlord and another tenant. And it can happen to your business, too!

The decision follows a 2010 lawsuit filed by Redner’s Markets, which has a store in the plaza, against the shopping center’s owner, Baltimore-based Cordish Companies.  In 2005, this Pennsylvania grocery chain became an anchor tenant after signing a lease with Joppatowne G.P. Limited Partnership, a division of Cordish.  Redner’s agreed to pay $12 million over a 20-year lease that prohibits Cordish from leasing property within a five-mile radius of the shopping center to competing grocery shops.

Redner’s claims that the presence of a half-dozen Amish stalls inside the sprawling marketplace, including Lapp’s Fresh Meats, breaks this contract and siphons business from the grocer.  According to an accountant hired by Redner’s, the grocery chain has lost around $2.3 million in revenue because of the Amish Market.  

Cordish, however, defends the presence of the Amish stores, insisting that they fall within the term of the lease that makes exceptions for ethnic markets.

On June 13, U.S. District Judge Richard D. Bennett ended this two year debate with his ruling against Cordish, ordering the removal of Lapp’s Fresh Meats.  He determined, however, that the presence of several other food stalls in Joppa Market Place do not violate the contract.  Still, the fate of numerous shops remains uncertain and requires another trial.

Cordish will appeal the order forcing Lapp’s Fresh Meats to close.  Meanwhile, the Amish  butchers can only wait for others to determine their fate. If Judge Bennett stays (or postpones) the effect of his order, the market will continue to operate while the appeal winds through the U.S. Court of Appeals. If the order is not stayed, our Amish neighbors will be sent packing.

Fairness to third-parties is not always a core concern in business disputes. Maryland law goes far to protect the deal made by parties to the contract, and that includes restrictions on competition.  Here, a long-term tenant extracted a specific promise from the landlord that related businesses would not be set up to compete against the tenant's business within a five mile radius. The Amish certainly did not know about this restriction when they signed their own lease but enforcement of the restriction necessarily destroys the Amish butcher's business.

But the Amish are not without recourse- if they hire an "english" lawyer, they just might prevail against Cordish for breach of their own leasing agreement.

That would be fair.

Monday, June 10, 2013

Don't be a court jester!

Chad Johnson (the football player formerly known as "Ochocinco") has not been relevant as a professional athlete for some time, but in this video clip, he becomes a lesson in court decorum to all court litigants, criminal and civil.

Don't slap your lawyer on the butt to celebrate a victory!

Put more simply, show some sense, and show some respect for the courtroom setting.  It is a serious place where serious matters are discussed and resolved, including Mr. Johnson's freedom. Here, his lack of respect caused Broward County Circuit Judge Kathleen "Katie" McHugh to reject the plea bargain made by the prosecution and defense lawyers which would have kept the defendant out of jail.  She is a no-nonsense judge with 18 years under her belt as an experienced prosecutor.

Watch what happens.

What did you just see?  You watched a fellow who has made a career out of excessive celebration on the football field inject a bit of showmanship in his own criminal hearing. And the court took deep offense. The court then exercised it's discretion to reject a negotiated plea agreement.

A judge in criminal matters is not obligated to accept a plea bargain.  The parties negotiations are nothing more than a suggestion to the court.  The judge may accept or reject the deal. She also had the option to honor the plea agreement and hold Mr. Johnson in contempt, or constructive civil contempt. She chose the harshest route and sent Mr. Johnson to jail. Whether Katie McHugh's conduct survives further challenge can be debated, but isn't the more important thing to stay out of jail, in the first instance?

Thanks, Mr. Johnson, for being a teacher.

Epilogue:  Judge McHugh releases Mr. Johnson after seven days in the slammer, but extends his probation by three months.

Thursday, June 6, 2013

Maryland v. King: Your DNA on trial.

In 1994, the State of Maryland established a DNA database to catalogue samples from convicted sex offenders.  Five years later, the list of persons required to contribute to the DNA database was expanded to include all those convicted of violent crimes.   Three years later, it was expanded to include all those convicted of felonies.  On January 1, 2009, Maryland once again expanded the reach of DNA collection to all persons arrested  (not convicted) for violent crimes.

Later in 2009, Alonzo King was arrested for assault.  Pursuant to Maryland’s DNA collection statute, the State extracted DNA from his mouth, and found it matched DNA taken from the victim of a 2003 rape.  Mr. King was subsequently indicted and convicted of rape, and sentenced to life without parole.  On appeal, Maryland’s highest court ruled that the practice of taking DNA from those who have not been convicted, but merely been arrested for certain crimes, violated the Fourth Amendment’s proscription of unreasonable searches and seizures.  The United States Supreme Court disagreed.

In a 5-4 decision, the Supreme Court found Maryland’s expanded DNA collection procedures constitutional, likening the extraction of DNA from an arrestee’s mouth to standard identification techniques like: finger-printing, comparing the arrestee to wanted posters, and looking at external tattoos of the arrestee.  The Supreme Court recognized that the intrusion associated with a swab of an arrestee’s mouth is necessarily greater than a visual inspection of their person, but reasoned that the intrusion was slight compared to the state interest served.

Let’s take a step back and consider how DNA samples are collected.  The inside of the mouth is rubbed with a cotton swab, also known as a buccal swab.  Cheek cells adhere to the swab, which is then marked with the party’s identification and sent to a laboratory for testing.  The timetable for results varies but can take up to two weeks. 

Results are then registered in DNA databases, making it possible for law enforcement laboratories to electronically search and compare collected DNA profiles to crime scene evidence.  The Combined DNA Index System (CODIS) links all local, state, and national databases and contains more than 5 million records.

All 50 states take cheek swabs from convicted criminals to check against federal and state databanks, with the court’s blessing.  The Supreme Court issue revolved around whether that DNA collection could come before conviction and without a judge issuing a warrant.  Currently, the federal government and 29 states, including Maryland, take DNA swabs upon arrest.  Of these states, 13 limit DNA collection to people arrested for a felony, while the others limit it to those accused of certain felonies.

The practical impact of the decision is that Maryland’s legislators have been vindicated by crafting a crime-fighting statute that has survived the highest level of federal constitutional scrutiny.  With every cold-case solved, politicians are re-writing their campaign speeches to emphasize their involvement with the passage of such a monumental law.

But where does it end?  Currently, anyone arrested for certain crimes, like assault, rape, arson, etc. are subject to mandatory DNA extraction.  As the brief history of Maryland’s DNA database has shown, the persons subject to such DNA extraction continues to grow.  It isn’t long before a legislator, seeking to appear “tough on crime,” proposes such extraction for an even broader cross-section of the community.

Soon, “you have the right to remain silent” may pale in ubiquity to “open wide and say ‘Ah’.”

Wednesday, June 5, 2013

Setting limits so you can afford to litigate.

A lawyer can help you with a whole lot of things in your life.  Heck, as a young lawyer, I even waited tables at a client's restaurant when his waitress called in sick on a Saturday (I made $50 in tips). As an older lawyer, I now have some clients who find value in calling me for advice over a wide range of business and personal matters, sometimes on a daily basis, and without much concern for the cost. That is truly the exception.

As a general rule, new and existing clients hire the firm for a specific task, such as review of a contract ("can I cancel/enforce this deal?"), or to answer a specific question ("if my business partner steals all the money, will I personally owe on the LLC tax bill?"). These are called "limited scope representations." 

Our practice, which mirrors the practice of most law firms, is to write down the scope of our engagement, as agreed by our clients. This avoids heartburn for all- you know what is to be paid, and we know what must be done to get paid.

But litigation is slightly different. If hired to prosecute or defend a lawsuit in the state or federal courts of Maryland and the District of Columbia, your lawyer is subject to court rules dictating what must be done, and when a lawyer may get out of a case. And if you have limited resources, you have to understand how your desire for limited scope, and limited costs, can sometimes be out of your lawyer's control. Most litigation engagements are broadly written precisely because litigation can be a pandora's box of cost and expense.  But if you understand some of the moving parts, you can still craft a reasonable limited scope engagement.

A lawsuit is like a big, messy, sandbox where the other children may not play nice.  And it is very likely that nobody wants to be in the sandbox, to begin with.  The only moment you are in full control of your lawsuit is when it is filed.  But once filed, how your case proceeds, and at what cost, can be greatly influenced by others- the court, the clerks office, your witnesses, and certainly the opposing side. 

Every court system has general rules, published in books that all lawyers have, which dictate how and when things must be done.  And then there are standing orders that apply to a particular courthouse.  Within each courthouse, the individual judge may have standing orders about how cases run in his or her courtroom.  Now add the scheduling order issued by the Assignment Office for your case, often with a fixed administrative deadline when the case must be completed, and managing your case cost and expense just got complicated.

Your witnesses, particularly experts, cost money (non-experts get reimbursed for expenses, while experts also get paid for their expertise), and they have their own work schedules and family emergencies. The more witnesses you have, the more complicated scheduling court dates, depositions, and trial becomes. A subpoena will force a witness to appear, but reasonable accomodations to a witnesses needs makes for more cooperative witnesses.

Your opponent certainly has a different idea about the case.  In fact, disagreement with your opponent likely triggered the lawsuit, right? So don't expect accommodation, and don't expect cooperation.  As officers of the court, and as professionals, the attorneys will extend various scheduling courtesies to each other, but that does not include compromising your opponent's substantive claims and defenses. And when the parties can't agree, it usually triggers a court proceeding to decide the issue. And that means cost and expense to you!

How do you minimize your cost and expense? The ethical rules in both Maryland and the District of Columbia permit lawyers to make fee agreements that limit the scope of engagement.  And so, if you don't want to spend money on depositions, you can carve that out of the engagement.  Some of our clients have requested this type of limitation.  But please know that you cannot prohibit your opponent from requiring depositions, or from serving written discovery requests, and that will require some participation by your lawyer, which equals expense to you. You also cannot carve out a court's particular requirements, such as mandatory conferences, hearings, status reports, mediation, exhibit preparation and exchange, and motions. Each one of these equals cost and expense to you.

Litigation is a very effective tool to resolve disputes, recover damages, and to protect your business and property interests. If you have limited resources (as we all do!), discuss possible limitation of the engagement with your lawyer, and write it all down in the fee agreement.  And even after you establish a budget, expect some surprises created by the other side. The fee agreement may even require amendment as the case progresses. But if you work hand-in-glove with your lawyer, you can achieve your goals.

Monday, May 27, 2013

In the Line of Duty

Rest in peace, Michael Sway, a lawyer who died while inspecting the roof of a building. Attorney Sway was doing what many lawyers do- preparing a case. Sadly, he fell 23 feet through a hole in a fire damaged roof, to his death.
I did not know Mr. Sway, but I can assure you he was doing something he loved. To be a trial lawyer is to love gathering facts. We get out of the office and up to the roof, literally and figuratively. If something is broken, we must see it and feel it. Only then can we fully test the witness accounts, and only then can we assess the truthfulness of those accounts. Visiting the scene of the accident, or handling the instrument that caused an injury is always a risk.  It’s like standing in the smoking crater, looking to the sky and asking “is this where the lightning hit?” I’m not particularly superstitious, but it must certainly tempt the fates to stand in place of the victim; We can’t know when Atropos will cut the thread of life.

Perhaps the closest call I’ve had while investigating a case came while I was happily tramping through the woods in Frederick County, inspecting a logging road on the side of a mountain which was at the heart of a property access dispute. I parked on the main highway, and walked about a quarter mile into the woods along the dirt road. I had my 35mm camera out, and every few steps I would stop, point and “click” a picture. And for 10 minutes or so, it was as uneventful as stop, point and “click.”

Intending one more photo, I stopped, pointed my camera and before I could depress the shutter, I heard a very distinct “click.”  I turned toward the sound to come face-to-face with a gentleman leveling a rifle in my general direction.  Well, it was exactly in my direction, actually.

“Who are you, and why are you on my land?”

A perfectly reasonable question, I thought.  I prefaced my answer with “I am a lawyer,” but immediately had second thoughts. A gun blast might be seen by some folks as the perfect punch line to a story beginning with “a lawyer was walking in the woods.”

It turns out that I was HIS lawyer. It is now my inviolable practice to call ahead of a site visit.

And so I mourn attorney Sway. He could have prepared his case from his office. He could have read a report prepared by someone else. He was doing it right.