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.