On Feb 23, 7:20 am, "A Michigan Attorney" <miattor...@gmail.com> wrote:
> Ah, but *duty* is not the jury's decision -- it belongs to the judge
> (although if I were in charge, I would make it the jury's).
A very bad idea IMO, for the reasons elaborated below.
> Duty is a question of preventing a reasonably foreseeable injury.
Agreed; but, so is the question of "proximate causation", which is generally an issue for the jury. They are really just 2 sides of the same coin, separated more for procedural reasons than for any consistent semantic or philosophically logical purposes.
The judge's "duty" analysis is a preliminary or threhold one, undertaken upon an opponent's motion to dismiss or motion for summary judgment, to determine whether there is "enough" of a question of reasonable foreseeability that (bad event) X would happen, _and_ if so, whether it would be reasonably easy "enough" to have prevented X, if defendant did (or refrained from doing) Y. "Enough", that is, to allow the plaintiff's claim of negligence to be presented to and decided by the jury. In making that determination, the judge is obligated to find every disputed fact issue and every inference to be drawn from those facts, in FAVOR of the person who will ultimately have to bear the burden of proof at trial. All the judge's "duty" finding does is let the plaintiff's case move on past the dismissal hurdle, and eventually get to be presented to the jury for its decision.
Then, when the jury hears all the evidence at trial and gets to deliberate, they will do so pursuant to the judge's instructions that they should find the defendant liable in negligence IF they find it was reasonably foreseeable that X would happen if defendant did (or didn't) do Y, _and_ if doing (or refraining from doing) Y was something a reasonably prudent person (who was or should have been mindful of the possibility of X happening) would have done under all those circumstances. If the jury finds it was too farfatched that X would happen, or too costly or burdensome for defendant to do or refrain from Y, he is relieved of liability for X; but otherwise, he can be held financially responsible to the victim of X event for doing Y when he shouldn't have, or for not doing Y when he should have.
Do you see the difference? I don't, except that "duty" and "proximate cause" are filters applied at 2 different procedural levels, and with diffferent degrees of required deference to the ultimate factfinder. Sort of like the difference between a grand jury's preliminary finding of "probable cause" for bringing a criminal indictment (a concept COMPLETELY unrelated to that of "proximate cause" in tort, not to mix them up) and the petit jury's finding of "guilt beyond a reasonable doubt" after a full trial. Same body of facts, same principles, but different level of required proof based on different presumptions at each procedural level.
So, do you still think the jury alone should decide "duty"? If so, I submit that all you are asking for is the elimination of one of the pre-trial procedural "filters" that kick out most of the bum cases before they ever reach a jury. Do you really want every conceivable half-assed claim any creative claimant can think of, to have to be presented to a jury at a full blown, ridiculously expensive trial on the merits? I don't. Neither do "tort reformers" who want to cut down on individuals' civil right to a jury trial and with whom I otherwise abhor sharing my political bed. Who _does_ favor eliminating the present system's judicial filter that disposes of most frivolous cases (and probably prevents even more of them from being brought in the first place because potential litigants' lawyers _know_ they will be thrown out)? PS: you _are_ an attorney, right?
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Wednesday, August 8, 2012
Condo, co-op, or townhouse - any legal difference?
On Feb 23, 7:20 am, "Stuart A. Bronstein" <spamt...@lexregia.com> wrote:
> I don't think the words "co-op," "townhouse" or "condo" have any
> particular legal meaning in California.
Stu, I'm surprised you're unaware of this. I think you've overlooked the fact that condos and co-ops are a creature of statute that do not exist at common law, and CA is full of them. AFAIK CA does indeed recognize and authorize the form of ownership of land called "condominium" (literally, "multiple individuals each owning a piece of the pie as well as a share of the crust") as well as real estate ownership by cooperatives (of course, CA recognizes other kinds of co-ops too: Sunkist, e.g. is a cooperative of individual citrus growers).
I just did a quick Google search on "California condominium law" and got over a million hits. One of which was for something called the 2007 Condominium Bluebook (found at www.condobook.com), touted as "a comprehensive overview of California condominium law" and which references something called the "Davis-Stirling Common Interest Development Act" as well as other "relevant California statutory law" on the subject of condos.
There were also over a million hits on my next search, for "California real estate cooperative law" including, at top of the list, a compendium of over 600 books discussing the subject. An example, verbatim from the first Google blurb:
"California Real Estate Law, 5e - Page 264
by Robert J Bruss - 2002 - 518 pages
Developments of five or more cooperative units fall under the jurisdiction of
the real estate commissioner. Cooperatives with four or fewer units are under ...":
It seems CA does statutorily recognize both co-ops and condos as different non-common-law forms of ownership of real property.
AFAIK you're right about "townhouse." Around here in Bawlamer ("Baltimore") they're called "row houses" unless the neighborhood is trying to be uppity. All it means is you've got adjacent multi-story single-family houses with a shared or abutting side wall between them and zero side setback. I would imagine CA does have zoning laws regulating setback so that townhouses are permitted only in certain places, but otherwise a townhouse is a plain ol' common law fee simple ownership of a single family home that just happens to rub up against the neighbors'. I guess an entire townhouse development could also be owned by a condo or co-op association and parceled out to its members, but that has nothing to do with the fact that this development contains the type of building called a townhouse. OTOH only condos or co-ops can legally parcel out ownership shares in a multi-story building in which different owners' spaces lie on top of one another. That's because at common law, ownership of land meant everything on, above, or below the surface of the piece of land (which works fine with individual townhomes) but there was no legal basis to sell e.g. just the second story of a building, or just a single apt. on any floor
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Mike Jacobs
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(tel) 410-740-5685 (fax) 410-740-4300
> I don't think the words "co-op," "townhouse" or "condo" have any
> particular legal meaning in California.
Stu, I'm surprised you're unaware of this. I think you've overlooked the fact that condos and co-ops are a creature of statute that do not exist at common law, and CA is full of them. AFAIK CA does indeed recognize and authorize the form of ownership of land called "condominium" (literally, "multiple individuals each owning a piece of the pie as well as a share of the crust") as well as real estate ownership by cooperatives (of course, CA recognizes other kinds of co-ops too: Sunkist, e.g. is a cooperative of individual citrus growers).
I just did a quick Google search on "California condominium law" and got over a million hits. One of which was for something called the 2007 Condominium Bluebook (found at www.condobook.com), touted as "a comprehensive overview of California condominium law" and which references something called the "Davis-Stirling Common Interest Development Act" as well as other "relevant California statutory law" on the subject of condos.
There were also over a million hits on my next search, for "California real estate cooperative law" including, at top of the list, a compendium of over 600 books discussing the subject. An example, verbatim from the first Google blurb:
"California Real Estate Law, 5e - Page 264
by Robert J Bruss - 2002 - 518 pages
Developments of five or more cooperative units fall under the jurisdiction of
the real estate commissioner. Cooperatives with four or fewer units are under ...":
It seems CA does statutorily recognize both co-ops and condos as different non-common-law forms of ownership of real property.
AFAIK you're right about "townhouse." Around here in Bawlamer ("Baltimore") they're called "row houses" unless the neighborhood is trying to be uppity. All it means is you've got adjacent multi-story single-family houses with a shared or abutting side wall between them and zero side setback. I would imagine CA does have zoning laws regulating setback so that townhouses are permitted only in certain places, but otherwise a townhouse is a plain ol' common law fee simple ownership of a single family home that just happens to rub up against the neighbors'. I guess an entire townhouse development could also be owned by a condo or co-op association and parceled out to its members, but that has nothing to do with the fact that this development contains the type of building called a townhouse. OTOH only condos or co-ops can legally parcel out ownership shares in a multi-story building in which different owners' spaces lie on top of one another. That's because at common law, ownership of land meant everything on, above, or below the surface of the piece of land (which works fine with individual townhomes) but there was no legal basis to sell e.g. just the second story of a building, or just a single apt. on any floor
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Mike Jacobs
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Can I get money from the man who assaulted me?
On Feb 23, 7:19 am, "dave" <dla...@gmail.com> wrote:
[OP got assaulted in bar; perp was caught]
> investigator now wants to know if I want to press charges or not (he
> talked to the suspect on the phone who admits to hitting me).
>
> This is my situation : I have 14 stiches on my face which will leave
> scars and over 1000$ of medical bills which I am not covered for.
> With the blood stained clothes and all, I figure he owes me 1500$.
If you sue him for assault and battery (with aid of a lawyer) you could win far more than that, including compensation for your pain and suffering as well as possibly punitive damages in addition to your out-of-pocket bills. And this guy may be well-heeled enough to pay it -- wouldn't you like to see that? Of course if he isn't, the criminal system may wind up being your best (and only) recourse to get some kind of justice even if it might not get your bills paid.
> I definately want to recover at least this much but what is the best
> way to go about it? Should I offer to drop all charges if he pays a
> certain amount?
NO, don't do that. In many states you would be committing the crime of extortion if you threaten to bring criminal charges "unless" a person pays you money. Go ahead and tell the police that you WILL press charges, then get yourself a PERSONAL INJURY LAWYER and let your lawyer take it from there.
> Should I press charges and then get the money through
> a civil trial or small claims court?
Yes, and maybe. The criminal justice system may also be able to order "restitution" as part of the perp's punishment (i.e. the judge would order him to pay your medical bills and ruined clothing) but that still is not enough to FULLY compensate you for what you are entitled to recover under civil tort law. So you could either just take hte restitution you are given and be satisfied with that, OR pursue a civil suit later. One does not bar the other.
> I live 4 hours away from the
> town it happened in so I would prefer to not go back 3-4 times for
> paper work and/or court appearances.
I'm afraid there is no guarantee you will not have to do so anyway, unless you just want to completely forget about the whole thing and refuse to cooperate with the police. Of course, then you won't get paid anything either for your injuries.
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I am not your lawyer, and you are not my client in any specific legal
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Mike Jacobs
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10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
[OP got assaulted in bar; perp was caught]
> investigator now wants to know if I want to press charges or not (he
> talked to the suspect on the phone who admits to hitting me).
>
> This is my situation : I have 14 stiches on my face which will leave
> scars and over 1000$ of medical bills which I am not covered for.
> With the blood stained clothes and all, I figure he owes me 1500$.
If you sue him for assault and battery (with aid of a lawyer) you could win far more than that, including compensation for your pain and suffering as well as possibly punitive damages in addition to your out-of-pocket bills. And this guy may be well-heeled enough to pay it -- wouldn't you like to see that? Of course if he isn't, the criminal system may wind up being your best (and only) recourse to get some kind of justice even if it might not get your bills paid.
> I definately want to recover at least this much but what is the best
> way to go about it? Should I offer to drop all charges if he pays a
> certain amount?
NO, don't do that. In many states you would be committing the crime of extortion if you threaten to bring criminal charges "unless" a person pays you money. Go ahead and tell the police that you WILL press charges, then get yourself a PERSONAL INJURY LAWYER and let your lawyer take it from there.
> Should I press charges and then get the money through
> a civil trial or small claims court?
Yes, and maybe. The criminal justice system may also be able to order "restitution" as part of the perp's punishment (i.e. the judge would order him to pay your medical bills and ruined clothing) but that still is not enough to FULLY compensate you for what you are entitled to recover under civil tort law. So you could either just take hte restitution you are given and be satisfied with that, OR pursue a civil suit later. One does not bar the other.
> I live 4 hours away from the
> town it happened in so I would prefer to not go back 3-4 times for
> paper work and/or court appearances.
I'm afraid there is no guarantee you will not have to do so anyway, unless you just want to completely forget about the whole thing and refuse to cooperate with the police. Of course, then you won't get paid anything either for your injuries.
--
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Mike Jacobs
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10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
Can I publish my notes of a college lecture class?
Robert Bonomi wrote:
> If the professor so much
> as wrote notes (or an outline) for the lecture -- even if just for his own
> use -- then _those_ items satisfy the 'fixed in a tangible medium of
> expression' requirement, an the 'presentation' in the classroom is then a
> 'public performance' of that _copyrighted_ work.
I agree with Mr. Bonomi's analysis, but that aside, if OP wants to begin a legitimate lecture-notes service for the classes he is attending and make his product available on the web or elsewhere, wouldn't the easiest way be to simply approach the professor and ask his permission? So long as he does so, and if his intent and work product is actually to aid fellow students in understanding and organizing the lecture material, IMO his chances are good that the professor will be happy to agree. The professor _wants_ the students to understand the material and, if they can do so with the aid of other people's notes, it will mean less time the professor will have to spend in office hours to go over the same already plowed ground with a student. I suspect many schools have even institutionalized the process somewhat, as mine did, and OP may be able to get paid as a note-writer for some centralized service on campus that does this (and that would jealously protect its own exclusive license to do so, but that is another question no one raised). When I was a grad student at UCLA several years back (I won't say how many, but I used a manual typewriter) I took notes (for a fee) for the Student Union's note-taking program in the classes I was already attending and listening to as part of my job as a Teaching Assistant. The SU then sold the proofread and printed notes (_they_ had a word processor, so it wasn't _that_ many years ago) to anyone who wanted them, all copyrighted and licensed and everything. Worked out great for everyone including the undergrads and the profs.
Of course, all this assumes that OP's goals are compatible with those of the school, to actually further the education of its students and not just give them a crib sheet. If a formal class-notes program does not exist yet on his campus, perhaps he can convince the authorities to let him create one, with the built-in marketing boost that exposure in the student newspaper and offical school website, etc. can provide.
Now, in law school, mainly we formed small study groups to share notes with and to go over the material until we understood it. That process itself was part of the learning experience and you probably would not find much market for published sets of lecture notes specific to a certain professor, since published outlines of the general material covered in law school classes were and are also widely available in bookstores and libraries without stepping on anyone's copyright toes.
--
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I am not your lawyer, and you are not my client in any specific legal
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> If the professor so much
> as wrote notes (or an outline) for the lecture -- even if just for his own
> use -- then _those_ items satisfy the 'fixed in a tangible medium of
> expression' requirement, an the 'presentation' in the classroom is then a
> 'public performance' of that _copyrighted_ work.
I agree with Mr. Bonomi's analysis, but that aside, if OP wants to begin a legitimate lecture-notes service for the classes he is attending and make his product available on the web or elsewhere, wouldn't the easiest way be to simply approach the professor and ask his permission? So long as he does so, and if his intent and work product is actually to aid fellow students in understanding and organizing the lecture material, IMO his chances are good that the professor will be happy to agree. The professor _wants_ the students to understand the material and, if they can do so with the aid of other people's notes, it will mean less time the professor will have to spend in office hours to go over the same already plowed ground with a student. I suspect many schools have even institutionalized the process somewhat, as mine did, and OP may be able to get paid as a note-writer for some centralized service on campus that does this (and that would jealously protect its own exclusive license to do so, but that is another question no one raised). When I was a grad student at UCLA several years back (I won't say how many, but I used a manual typewriter) I took notes (for a fee) for the Student Union's note-taking program in the classes I was already attending and listening to as part of my job as a Teaching Assistant. The SU then sold the proofread and printed notes (_they_ had a word processor, so it wasn't _that_ many years ago) to anyone who wanted them, all copyrighted and licensed and everything. Worked out great for everyone including the undergrads and the profs.
Of course, all this assumes that OP's goals are compatible with those of the school, to actually further the education of its students and not just give them a crib sheet. If a formal class-notes program does not exist yet on his campus, perhaps he can convince the authorities to let him create one, with the built-in marketing boost that exposure in the student newspaper and offical school website, etc. can provide.
Now, in law school, mainly we formed small study groups to share notes with and to go over the material until we understood it. That process itself was part of the learning experience and you probably would not find much market for published sets of lecture notes specific to a certain professor, since published outlines of the general material covered in law school classes were and are also widely available in bookstores and libraries without stepping on anyone's copyright toes.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Probate of Mom's will - was I included?
On Feb 21, 6:52 am, "Mr. Freeze" <freeconce...@hotmail.com> wrote:
> My mom died several years back, and at the time I was so upset that I
> didn't get too involved.
Sorry to hear about your loss.
> 1.) I never got a copy of the will. She was a California resident.
> How can I get a copy of the will?
You leave many more questions unanswered than you ask. Have you heard _nothing_ from anyone, in all these years, about your Mom's Will? Generally, a legitimate child of the decedent is entitled to receive at least an initial notice of probate proceedings getting underway, but many states allow such "interested persons" to sign a paper waiving the right to receive any further notices from the probate court. Are you _sure_ you never signed any such papers?
If you really didn't receive any notice at all, 2 likely possibilities spring to mind:
(1) your Mom planned her estate so that, as of her date of death, she did not actually own any property that would have had to pass through probate. In that case, her Will (if she had one) would never have to be probated or made public in any way, since there was no property to pass under the Will. For instance, she could have executed a Deed while still alive giving an undivided joint interest with right of survivorship (JTWROS) to someonie else as to some or all of her property (house, bank accounts, etc.), or could have placed it in a living trust.
(2) you were defrauded. IMO, option (1) is far more likely. But to make sure it wasn't option (2), you should at least inquire further to find out what you can.
Wills are supposed to be probated in the County where your Mom "resided" when she died. That may or may not be the same county she died in, e.g. if she was at an out-of-county hospice or nursing home, frex. If in doubt, check all of the possible counties. You want to contact the Clerk of the general trial-level State Court (whatever it is called where you live: IIRC in CA it is the Superior Court) and find out which sub-office in that Court handles Wills. If your Mom's Will has been submitted to probate, it will be a public document, and you can get a copy from the appropriate Court Clerk.
If the Will was never submitted to probate, your options are more limited. Use whatever information and contacts you _do_ know about to ask more questions and find out more. That's about all any of us can tell you on the skeletal facts you provided in your post. Do you know who your Mom's attorney was who drafted the Will? What other relatives might have had a role in executing the Will? Talk to them, for pete's sake. OTOH, if you are estranged from your family, it could be that keeping you in the dark is exactly what they want.
> 2.) Once I get a copy of the will, how can I assess whether it was
> properly executed and be certain I was fairly included?
Trust me, you probably weren't "included" or you would have heard something about it by now. And "fair" is in the eye of the testator: your Mom had every right to leave all her property to her _other_ favorite child, OR to a charity, OR to her cat Fluffy. What you want to find out is, IF in fact you were included, did you get everything that the Will says was coming to you? If the answer to that is not obvious to you after you get ahold of a copy of the Will and find out what happened in probate (if anything), maybe you should call around and make an appointment with a local will-and-probate lawyer to see if they can help you further. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> My mom died several years back, and at the time I was so upset that I
> didn't get too involved.
Sorry to hear about your loss.
> 1.) I never got a copy of the will. She was a California resident.
> How can I get a copy of the will?
You leave many more questions unanswered than you ask. Have you heard _nothing_ from anyone, in all these years, about your Mom's Will? Generally, a legitimate child of the decedent is entitled to receive at least an initial notice of probate proceedings getting underway, but many states allow such "interested persons" to sign a paper waiving the right to receive any further notices from the probate court. Are you _sure_ you never signed any such papers?
If you really didn't receive any notice at all, 2 likely possibilities spring to mind:
(1) your Mom planned her estate so that, as of her date of death, she did not actually own any property that would have had to pass through probate. In that case, her Will (if she had one) would never have to be probated or made public in any way, since there was no property to pass under the Will. For instance, she could have executed a Deed while still alive giving an undivided joint interest with right of survivorship (JTWROS) to someonie else as to some or all of her property (house, bank accounts, etc.), or could have placed it in a living trust.
(2) you were defrauded. IMO, option (1) is far more likely. But to make sure it wasn't option (2), you should at least inquire further to find out what you can.
Wills are supposed to be probated in the County where your Mom "resided" when she died. That may or may not be the same county she died in, e.g. if she was at an out-of-county hospice or nursing home, frex. If in doubt, check all of the possible counties. You want to contact the Clerk of the general trial-level State Court (whatever it is called where you live: IIRC in CA it is the Superior Court) and find out which sub-office in that Court handles Wills. If your Mom's Will has been submitted to probate, it will be a public document, and you can get a copy from the appropriate Court Clerk.
If the Will was never submitted to probate, your options are more limited. Use whatever information and contacts you _do_ know about to ask more questions and find out more. That's about all any of us can tell you on the skeletal facts you provided in your post. Do you know who your Mom's attorney was who drafted the Will? What other relatives might have had a role in executing the Will? Talk to them, for pete's sake. OTOH, if you are estranged from your family, it could be that keeping you in the dark is exactly what they want.
> 2.) Once I get a copy of the will, how can I assess whether it was
> properly executed and be certain I was fairly included?
Trust me, you probably weren't "included" or you would have heard something about it by now. And "fair" is in the eye of the testator: your Mom had every right to leave all her property to her _other_ favorite child, OR to a charity, OR to her cat Fluffy. What you want to find out is, IF in fact you were included, did you get everything that the Will says was coming to you? If the answer to that is not obvious to you after you get ahold of a copy of the Will and find out what happened in probate (if anything), maybe you should call around and make an appointment with a local will-and-probate lawyer to see if they can help you further. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Jury issues and juror questions
On Feb 15, 4:24 pm, b...@nyx.net (Barry Gold) wrote:
> Stuart A. Bronstein <spamt...@lexregia.com> wrote:
> >Mark Ferguson <washington_resid...@whew.com> wrote:
> >> If the officer mislead on one issue should he be believed on
> >> others?
That's entirely up to you, the juror.
> >> He claimed something I did not think was possible
Then you don't have to believe it. You are not required to suspend your usual critical faculties by being on a jury.
> >> but I
> >> was forbidden by the judge to find out and as far as he was
> >> concerned I would simply have to either accept it as fact or not.
As is usually covered by the judge's instructions, you the jury are free to believe all, some, or none of any witnesses' testimony, and are free to give it the weight you feel it deserves based on all the factors you would normally bring to bear in judging the probable truth of a statement.
If what you mean by "forbidden by the judge to find out" you mean you were told not to do any independent investigation of the facts, such as by consulting the web, a dictionary, or an encyclopedia, or going to the scene of the occurrence to see it for yourself (other than as part of a court-approved, group "site visit" by the entire jury), you are absolutely right.
That would throw an unpredicted and unwanted element of chance into the proceedings since the judge and the 2 opposing lawyers would have no control over the context in which you viewed the additional information, whether it was legally relevant or possibly unfairly prejudicial to one side or other, and moreover, they would have no idea that you DID it and thus would not include any of the facts you independently looked up in their summary arguments at the end of the case, where the lawyers present for the jury's consideration the way _they_ each see all the relevant facts fitting together and meshing with the judge's instructions on the applicable law. You, in other words, will have created a loose cannon on the deck of the ship of the law if you go running around looking stuff up on your own.
> >What did you want to find out and how would you do it? It's the
> >lawyer's job to introduce that evidence if he thinks it makes a
> >difference.
Stu is right, and this point is both important and often overlooked: a petit jury trial is NOT really intended, as commonly assumed by lay persons, to be a full-blown "truth-finding expedition" in any absolute, wide-ranging sense. Of course, the witnesses are supposed to tell the truth, not lie. But the overall picture being presented at a trial, by each side, is a carefully selected collage, cut and pasted from the entire universe of possible relevant facts to include only those facts that each side wants you to know about, because that side's lawyer thinks it will help them win the case -- WINNING is what a trial on the merits is all about, not "getting at the truth."
That's partly because, with all the pre-trial procedures in place (that the jury never sees or hears about) which winnow out for early disposition most of the filed cases, those that are clearly going to tip one way or the other, the cases that _do_ actually get to a contested factual trial on the merits (at least on the civil side) are those that reasonably COULD be decided in either direction without being unduly unfair, since the evidence is pretty close to being evenly balanced on those "scales of justice". (And in those cases, including a large number of criminal cases, that _are_ a slam-dunk cakewalk for one side or the other, questions of fine points of missing evidence such as that raised by OP really don't ever come into play).
Note, that DOESN'T mean that either side can get away with pure propaganda that whitewashes any warts on their own case and paints the other side as demons incarnate; if they try to do so, any halfway competent advocate on the other side will quickly call them on it and make them look foolish in front of the jury, losing all credibility, so the system tends to be self-regulating by reason of the push-pull of the opposing adversaries. If one side is asleep at the switch, though, such injustices can occur.
The legal proceedings that most closely match what most people consider a "truth-finding expedition" are the GRAND jury hearing considering whether probable cause exists to enter an indictment; the coroner's inquest (in GB and possibly some USA states) investigating the cause of a homicide to determine if any criminal charges should be brought; an inquisitorial (as opposed to adversarial) trial on the merits -- still common in juvenile court, family court, courts martial, and the Continental European "civil law" system; or pre-trial discovery depositions in a common law system. In those examples (except for the discovery process itself) there typically has been little if any pre-trial factual discovery, the persons deciding the facts are the same ones deciding the applicable law, and the factfinders (rather than the advocates) take a much stronger role in asking questions of the witnesses, trying to get rid of the chaff and find the kernel of what happened, looking for a basis on which they can decide the case.
Note, Monty Python and Joan of Arc aside, an "inquisition" doesn't just mean they whip you to make you confess heresy and then burn you at the stake if you don't. Its name simply refers to the "inquisitive" or purportedly wide-ranging and curious truth-finding nature of the overall proceeding.
In a common law petit jury trial, by contrast, the parties and their lawyers already know, before trial begins, what their opposing sets of evidence relevant to the various material facts are that they want the jury to find, since the _lawyers_ have already done the legwork of gathering what _they_ thought was relevant, and learned of the opposing party's evidence through pre-trial discovery of each other's documentary evidence and through sworn testimony already taken from parties and witnesses at depositions and through written interrogatory answers.
Thus, a modern common law trial is really a very carefully staged play, a theatrical event, at which each side's carefully chosen pieces of evidence presents, in toto, a narrative which that side wants you to accept as "the" explanation of the disputed factual question, "what happened?". The narrative presented is supposed to be based on TRUTH, of course, but it is a SELECTIVE truth. Anything someone else (such as an inquisitive juror) throws into the mix for the first time at trial would be like putting some improv standup comic on stage in the middle of a Shakespeare performance. All it can do is muddle things, not clarify them.
> I'm not sure what OP meant saying he "was forbidden by the judge to
> find out." There are mechanisms in place for a juror to ask questions
> of a witness -- usually submitting a question to the judge, and it
> will be asked if the judge decides it is relevant, competent, and
> material.
Absolutely. This has always been allowed at common law, in the discretion of the judge, and more and more judges these days are encouraging juror questions because even if the answer might be, "that's not legally relevant so we don't want you to consider that one way or the other during your deliberations", it sure helps both adversarial sides to know what it is that the particular jury WANTS to know but hasn't been told yet. Perhaps, if the juror's question is potentially relevant but not quite properly phrased, the lawyers can use it as a guide for asking further questions of the remaining witnesses in a proper manner that will (at least in part) respond to the juror's concerns.
> The advantage of this procedure is that it ensures that jurors -- who
> don't have a lawyer's understanding of what kinds of questions are
> allowed -- can't contaminate the proceedings with improper questions.
> The disadvantage is that it doesn't allow give and take -- if the
> answer is incomplete or otherwise prompts another question, the juror
> will again have to submit it, etc.
But some juries _do_ submit large numbers of questions -- hundreds, in one recent case I read about. There is at least as much back-and-forth with this procedure, cumbersome though it is, as in something like this moderated newsgroup, where you won't get an answer to a posted question for at least a day and an entire conversation may take weeks.
> I'm not sure what I would do if I submitted a question and judge
> refused to allow it. One option would be to simply assume the answer
> that is most harmful to the prosecution's case.
If there is a PERMISSIBLE presumption in that direction, rest assured the opponent will ask the judge to so instruct you. For instance, many states apply such a presumption against a party who has been found (by the judge) to have committed "spoliation of evidence", the technical term for Enronning or Ollie Northing your documents with a paper shredder, hauling the car with the defective airbag off to the crusher mill to be turned into tin cans, or pushing the "delete" button on electronic data.
Otherwise, you're not supposed to presume one way or the other, since that would be to base your verdict on a "guess, surmise or speculation" rather than hard evidence. Of course, if you feel that you NEED some essential factual element in order to find either way, and that element has not been presented to you in the carefully orchestrated trial you have just taken part in, the whole point is you then have to apply the BURDEN OF PROOF instruction given you by the judge; the party who had the burden to affirmatively establish that fact, and failed to do so, loses.
Perhaps that's what OP meant by saying he would intuitively hold the failure of proof against the prosecution; he would do so because it is the prosecution that has the burden of both coming forward with legally sufficient evidence to even present a disputed fact issue to the jury, and then of persuading the jury to actually believe that this evidence proves what the prosecution says it does. If they fail to do either of those, the defense wins.
You the juror may not know it at the time, but often one side (or both) at trial is FULLY AWARE that you are only getting part of the story you want to hear, and they like it that way just fine because they believe you will NOT be convinced by the sparse (or nonexistent) evidence actually brought out on a particular point by the party with the burden of proof, and thus they are confident you will rule in favor of the non-burdened party. As an example, criminal juries often want a definitive answer to the question "who dun it." Well, the defense doesn't have to prove that; rather, the proscution has to prove that the _defendant_ is who dun it. If they fail to convince you of that fact, you are supposed to find in favor of the defendant, even if the mystery hasn't been solved to your satisfaction and the answer you _want_ is still up in the air.
Real life trials are NOT like a Perry Mason re-run, where someone unexpected ALWAYS breaks down and confesses right there on the witness stand, freeing Perry's client; nor is it like a CSI episode, where the prosecution has definitive, scientifically overwhelming DNA proof that "defendant dun it." Circumstantial evidence is fine, if it doesn't leave room in the juror's minds for reasonable doubt about other possible explanations.
> But legally, it seems
> likely that the judge disallowed the question because it isn't even
> relevant -- or not material (doesn't affect the outcome) or not within
> the purview of the witness(*). So I should pretend that the question
> never occurred to me, I guess.
That's right. You can't ever "unring the bell", of course, but you can consciously decide that you will not include any speculation about the possible answer to that question as a basis for any of the positions you take in deliberations, or for your final verdict.
Another example: car crashes. In most states, any MENTION, by either party (within the hearing of the jury), as to whether or not the defendant had LIABILITY INSURANCE is completely taboo, and could spark a mistrial if a witness blurts out something or even a dismissal or default if the judge feels the party or lawyer did so on purpose.
Now, most people who drive know that most _other_ people who drive HAVE liability insurance. So, when those drivers get on a jury, what are they to make of the fact that insurance isn't mentioned at all, at the trial? This is a thorny area, since (especially with the recent "tort reform" propaganda poisoning juror's minds) many jurors come in with a preconceived notion that most plaintiffs are just trying to "get something for nothing", by seeking "pain and suffering" damages, since "of course" all their medical bills and collision repair have "already" been taken care of by the other guy's insurance and they just want to rub it in by asking the jury to give them the "cherry on top" which, jurors might then assume, will have to come out of the defendant's own pockets.
Of course, that is as far from the truth as could be: the reason there even _is_ a trial being held, is that there was NO pre-trial settlement with the defendant's insurance company (OR the defendant had no insurance, but the jury is not allowed to know which), and the insurer is making the plaintiff jump through all the hoops and prove his case to a jury before they -- the INSURER -- will pay the plaintiff a dime. Meanwhile, the insurer is paying for the defendant's lawyer.
Or, some jurors may assume the opposite. There was a post on this NG just yesterday by someone who apparently believed he was being cast to the wolves and would have to "go it alone", paying for a lawyer and/or any possible judgment against him out of his own pocket, where he recently got sued by a person injured in a crash even though the insurer's initial investigation "cleared" that poster of any fault in causing the crash.
My guess is, he figured the insurer was out of the picture after they made that determination and thus he was on his own. Of course, that isn't the case either; the insurer for the person sued will happily provide him with a defense lawyer free of extra charge in return for those premiums he's been paying, and (if the insurer contests the plaintiff's claim) they almost surely WILL force that claim to go to trial if they can't get it thrown out on summary judgment (but the insurer WILL pay a judgment if one is entered, after trial).
Jurors are simply not supposed to consider the issue of whethjer defendant had liability insurance one way or the other, not because it isn't a fact that most people already know OR that most people would WANT to know about a crash; rather, because the only possible conclusions they could draw from knowing that fact would be highly prejudicial to one party or the other, and legally irrelevant when all the jury were called upon to decide was whether the defendant was in fact negligent or not, and (if so) how badly the plaintiff got hurt, by putting a money value on it.
On the one hand, if they assume (or are told) that there IS insurance, the jury may tend to be MORE generous to the injured victim than they might otherwise be, since a mega-corporation, not Defendant Dave the Distracted Driver, is whose pocket the payments will be coming from. Judges generally quash this speculation with an instruction that "all persons, including corporations, stand equal before the law and you are not to take into account their social standing, their relative wealth or poverty, [etc] during your deliberations or in reaching your verdict; you are to base your verdict only on the evidence presented at trial."
OTOH if the jury assumes or is told there is NO insurance coverage for defendant's liability, they may (wrongly, in the eyes of the law) exonerate a clearly liable defendant and/or cut out some of plaintiff's damages claim, denying him some of the compensation he proved he was entitled to, simply because the jury presumed and didn't want all that money to be coming out of Defendant Dave's own pocket, as a presumed result of which he would lose his house to a judgment lien, his wages would be garnished, his children would starve, etc.
What's so hard about just not considering this fact, one way or the other, at all? That's what the judge tells jurors to do.
> What would you do if you had an unanswered question that mattered _to
> you_ even if the judge didn't think it material?
I would hope OP would nevertheless obey the judge's instructions and consciously exclude any speculation about the possible answers to his question from his deliberations on the issues he was selected to decide. But we lawyers know, from bitter experience, that there often are a few jurors who just don't get that message and who go off on a legally irrelevant tangent yielding unpredictable results.
With no particular person in mind, I will conclude that those who complain most loudly about "runaway juries" and "frivolous claims winning millions of dollars" or "murderers caught red-handed going free on a technicality" ought to take a close look in the mirror and see whether the outcomes of those trials they complain about would have been different, and more in line with their self-perceived concepts of ultimate justice, if the jurors in those trials _had_ more closely followed all the judge's instructions, including the ones to avoid any speculation about factual matters not in evidence.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Stuart A. Bronstein <spamt...@lexregia.com> wrote:
> >Mark Ferguson <washington_resid...@whew.com> wrote:
> >> If the officer mislead on one issue should he be believed on
> >> others?
That's entirely up to you, the juror.
> >> He claimed something I did not think was possible
Then you don't have to believe it. You are not required to suspend your usual critical faculties by being on a jury.
> >> but I
> >> was forbidden by the judge to find out and as far as he was
> >> concerned I would simply have to either accept it as fact or not.
As is usually covered by the judge's instructions, you the jury are free to believe all, some, or none of any witnesses' testimony, and are free to give it the weight you feel it deserves based on all the factors you would normally bring to bear in judging the probable truth of a statement.
If what you mean by "forbidden by the judge to find out" you mean you were told not to do any independent investigation of the facts, such as by consulting the web, a dictionary, or an encyclopedia, or going to the scene of the occurrence to see it for yourself (other than as part of a court-approved, group "site visit" by the entire jury), you are absolutely right.
That would throw an unpredicted and unwanted element of chance into the proceedings since the judge and the 2 opposing lawyers would have no control over the context in which you viewed the additional information, whether it was legally relevant or possibly unfairly prejudicial to one side or other, and moreover, they would have no idea that you DID it and thus would not include any of the facts you independently looked up in their summary arguments at the end of the case, where the lawyers present for the jury's consideration the way _they_ each see all the relevant facts fitting together and meshing with the judge's instructions on the applicable law. You, in other words, will have created a loose cannon on the deck of the ship of the law if you go running around looking stuff up on your own.
> >What did you want to find out and how would you do it? It's the
> >lawyer's job to introduce that evidence if he thinks it makes a
> >difference.
Stu is right, and this point is both important and often overlooked: a petit jury trial is NOT really intended, as commonly assumed by lay persons, to be a full-blown "truth-finding expedition" in any absolute, wide-ranging sense. Of course, the witnesses are supposed to tell the truth, not lie. But the overall picture being presented at a trial, by each side, is a carefully selected collage, cut and pasted from the entire universe of possible relevant facts to include only those facts that each side wants you to know about, because that side's lawyer thinks it will help them win the case -- WINNING is what a trial on the merits is all about, not "getting at the truth."
That's partly because, with all the pre-trial procedures in place (that the jury never sees or hears about) which winnow out for early disposition most of the filed cases, those that are clearly going to tip one way or the other, the cases that _do_ actually get to a contested factual trial on the merits (at least on the civil side) are those that reasonably COULD be decided in either direction without being unduly unfair, since the evidence is pretty close to being evenly balanced on those "scales of justice". (And in those cases, including a large number of criminal cases, that _are_ a slam-dunk cakewalk for one side or the other, questions of fine points of missing evidence such as that raised by OP really don't ever come into play).
Note, that DOESN'T mean that either side can get away with pure propaganda that whitewashes any warts on their own case and paints the other side as demons incarnate; if they try to do so, any halfway competent advocate on the other side will quickly call them on it and make them look foolish in front of the jury, losing all credibility, so the system tends to be self-regulating by reason of the push-pull of the opposing adversaries. If one side is asleep at the switch, though, such injustices can occur.
The legal proceedings that most closely match what most people consider a "truth-finding expedition" are the GRAND jury hearing considering whether probable cause exists to enter an indictment; the coroner's inquest (in GB and possibly some USA states) investigating the cause of a homicide to determine if any criminal charges should be brought; an inquisitorial (as opposed to adversarial) trial on the merits -- still common in juvenile court, family court, courts martial, and the Continental European "civil law" system; or pre-trial discovery depositions in a common law system. In those examples (except for the discovery process itself) there typically has been little if any pre-trial factual discovery, the persons deciding the facts are the same ones deciding the applicable law, and the factfinders (rather than the advocates) take a much stronger role in asking questions of the witnesses, trying to get rid of the chaff and find the kernel of what happened, looking for a basis on which they can decide the case.
Note, Monty Python and Joan of Arc aside, an "inquisition" doesn't just mean they whip you to make you confess heresy and then burn you at the stake if you don't. Its name simply refers to the "inquisitive" or purportedly wide-ranging and curious truth-finding nature of the overall proceeding.
In a common law petit jury trial, by contrast, the parties and their lawyers already know, before trial begins, what their opposing sets of evidence relevant to the various material facts are that they want the jury to find, since the _lawyers_ have already done the legwork of gathering what _they_ thought was relevant, and learned of the opposing party's evidence through pre-trial discovery of each other's documentary evidence and through sworn testimony already taken from parties and witnesses at depositions and through written interrogatory answers.
Thus, a modern common law trial is really a very carefully staged play, a theatrical event, at which each side's carefully chosen pieces of evidence presents, in toto, a narrative which that side wants you to accept as "the" explanation of the disputed factual question, "what happened?". The narrative presented is supposed to be based on TRUTH, of course, but it is a SELECTIVE truth. Anything someone else (such as an inquisitive juror) throws into the mix for the first time at trial would be like putting some improv standup comic on stage in the middle of a Shakespeare performance. All it can do is muddle things, not clarify them.
> I'm not sure what OP meant saying he "was forbidden by the judge to
> find out." There are mechanisms in place for a juror to ask questions
> of a witness -- usually submitting a question to the judge, and it
> will be asked if the judge decides it is relevant, competent, and
> material.
Absolutely. This has always been allowed at common law, in the discretion of the judge, and more and more judges these days are encouraging juror questions because even if the answer might be, "that's not legally relevant so we don't want you to consider that one way or the other during your deliberations", it sure helps both adversarial sides to know what it is that the particular jury WANTS to know but hasn't been told yet. Perhaps, if the juror's question is potentially relevant but not quite properly phrased, the lawyers can use it as a guide for asking further questions of the remaining witnesses in a proper manner that will (at least in part) respond to the juror's concerns.
> The advantage of this procedure is that it ensures that jurors -- who
> don't have a lawyer's understanding of what kinds of questions are
> allowed -- can't contaminate the proceedings with improper questions.
> The disadvantage is that it doesn't allow give and take -- if the
> answer is incomplete or otherwise prompts another question, the juror
> will again have to submit it, etc.
But some juries _do_ submit large numbers of questions -- hundreds, in one recent case I read about. There is at least as much back-and-forth with this procedure, cumbersome though it is, as in something like this moderated newsgroup, where you won't get an answer to a posted question for at least a day and an entire conversation may take weeks.
> I'm not sure what I would do if I submitted a question and judge
> refused to allow it. One option would be to simply assume the answer
> that is most harmful to the prosecution's case.
If there is a PERMISSIBLE presumption in that direction, rest assured the opponent will ask the judge to so instruct you. For instance, many states apply such a presumption against a party who has been found (by the judge) to have committed "spoliation of evidence", the technical term for Enronning or Ollie Northing your documents with a paper shredder, hauling the car with the defective airbag off to the crusher mill to be turned into tin cans, or pushing the "delete" button on electronic data.
Otherwise, you're not supposed to presume one way or the other, since that would be to base your verdict on a "guess, surmise or speculation" rather than hard evidence. Of course, if you feel that you NEED some essential factual element in order to find either way, and that element has not been presented to you in the carefully orchestrated trial you have just taken part in, the whole point is you then have to apply the BURDEN OF PROOF instruction given you by the judge; the party who had the burden to affirmatively establish that fact, and failed to do so, loses.
Perhaps that's what OP meant by saying he would intuitively hold the failure of proof against the prosecution; he would do so because it is the prosecution that has the burden of both coming forward with legally sufficient evidence to even present a disputed fact issue to the jury, and then of persuading the jury to actually believe that this evidence proves what the prosecution says it does. If they fail to do either of those, the defense wins.
You the juror may not know it at the time, but often one side (or both) at trial is FULLY AWARE that you are only getting part of the story you want to hear, and they like it that way just fine because they believe you will NOT be convinced by the sparse (or nonexistent) evidence actually brought out on a particular point by the party with the burden of proof, and thus they are confident you will rule in favor of the non-burdened party. As an example, criminal juries often want a definitive answer to the question "who dun it." Well, the defense doesn't have to prove that; rather, the proscution has to prove that the _defendant_ is who dun it. If they fail to convince you of that fact, you are supposed to find in favor of the defendant, even if the mystery hasn't been solved to your satisfaction and the answer you _want_ is still up in the air.
Real life trials are NOT like a Perry Mason re-run, where someone unexpected ALWAYS breaks down and confesses right there on the witness stand, freeing Perry's client; nor is it like a CSI episode, where the prosecution has definitive, scientifically overwhelming DNA proof that "defendant dun it." Circumstantial evidence is fine, if it doesn't leave room in the juror's minds for reasonable doubt about other possible explanations.
> But legally, it seems
> likely that the judge disallowed the question because it isn't even
> relevant -- or not material (doesn't affect the outcome) or not within
> the purview of the witness(*). So I should pretend that the question
> never occurred to me, I guess.
That's right. You can't ever "unring the bell", of course, but you can consciously decide that you will not include any speculation about the possible answer to that question as a basis for any of the positions you take in deliberations, or for your final verdict.
Another example: car crashes. In most states, any MENTION, by either party (within the hearing of the jury), as to whether or not the defendant had LIABILITY INSURANCE is completely taboo, and could spark a mistrial if a witness blurts out something or even a dismissal or default if the judge feels the party or lawyer did so on purpose.
Now, most people who drive know that most _other_ people who drive HAVE liability insurance. So, when those drivers get on a jury, what are they to make of the fact that insurance isn't mentioned at all, at the trial? This is a thorny area, since (especially with the recent "tort reform" propaganda poisoning juror's minds) many jurors come in with a preconceived notion that most plaintiffs are just trying to "get something for nothing", by seeking "pain and suffering" damages, since "of course" all their medical bills and collision repair have "already" been taken care of by the other guy's insurance and they just want to rub it in by asking the jury to give them the "cherry on top" which, jurors might then assume, will have to come out of the defendant's own pockets.
Of course, that is as far from the truth as could be: the reason there even _is_ a trial being held, is that there was NO pre-trial settlement with the defendant's insurance company (OR the defendant had no insurance, but the jury is not allowed to know which), and the insurer is making the plaintiff jump through all the hoops and prove his case to a jury before they -- the INSURER -- will pay the plaintiff a dime. Meanwhile, the insurer is paying for the defendant's lawyer.
Or, some jurors may assume the opposite. There was a post on this NG just yesterday by someone who apparently believed he was being cast to the wolves and would have to "go it alone", paying for a lawyer and/or any possible judgment against him out of his own pocket, where he recently got sued by a person injured in a crash even though the insurer's initial investigation "cleared" that poster of any fault in causing the crash.
My guess is, he figured the insurer was out of the picture after they made that determination and thus he was on his own. Of course, that isn't the case either; the insurer for the person sued will happily provide him with a defense lawyer free of extra charge in return for those premiums he's been paying, and (if the insurer contests the plaintiff's claim) they almost surely WILL force that claim to go to trial if they can't get it thrown out on summary judgment (but the insurer WILL pay a judgment if one is entered, after trial).
Jurors are simply not supposed to consider the issue of whethjer defendant had liability insurance one way or the other, not because it isn't a fact that most people already know OR that most people would WANT to know about a crash; rather, because the only possible conclusions they could draw from knowing that fact would be highly prejudicial to one party or the other, and legally irrelevant when all the jury were called upon to decide was whether the defendant was in fact negligent or not, and (if so) how badly the plaintiff got hurt, by putting a money value on it.
On the one hand, if they assume (or are told) that there IS insurance, the jury may tend to be MORE generous to the injured victim than they might otherwise be, since a mega-corporation, not Defendant Dave the Distracted Driver, is whose pocket the payments will be coming from. Judges generally quash this speculation with an instruction that "all persons, including corporations, stand equal before the law and you are not to take into account their social standing, their relative wealth or poverty, [etc] during your deliberations or in reaching your verdict; you are to base your verdict only on the evidence presented at trial."
OTOH if the jury assumes or is told there is NO insurance coverage for defendant's liability, they may (wrongly, in the eyes of the law) exonerate a clearly liable defendant and/or cut out some of plaintiff's damages claim, denying him some of the compensation he proved he was entitled to, simply because the jury presumed and didn't want all that money to be coming out of Defendant Dave's own pocket, as a presumed result of which he would lose his house to a judgment lien, his wages would be garnished, his children would starve, etc.
What's so hard about just not considering this fact, one way or the other, at all? That's what the judge tells jurors to do.
> What would you do if you had an unanswered question that mattered _to
> you_ even if the judge didn't think it material?
I would hope OP would nevertheless obey the judge's instructions and consciously exclude any speculation about the possible answers to his question from his deliberations on the issues he was selected to decide. But we lawyers know, from bitter experience, that there often are a few jurors who just don't get that message and who go off on a legally irrelevant tangent yielding unpredictable results.
With no particular person in mind, I will conclude that those who complain most loudly about "runaway juries" and "frivolous claims winning millions of dollars" or "murderers caught red-handed going free on a technicality" ought to take a close look in the mirror and see whether the outcomes of those trials they complain about would have been different, and more in line with their self-perceived concepts of ultimate justice, if the jurors in those trials _had_ more closely followed all the judge's instructions, including the ones to avoid any speculation about factual matters not in evidence.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Substitute teacher school porn case
Be afraid, my compu-savvy legal friends, be very afraid. There are people running our governments, police, and courts, not to mention teaching and administering our schoolage offspring, whose cluelessness about the cyber ocean in which we all now swim has reached depths more profound than the Mariana Trench. I had to decompress myself after reading this article just to avoid getting "the bends":
"Was Julie Amero Wrongly Convicted?" _The_Register_, 14 Feb. 2007:
http://www.theregister.co.uk/2007/02/14/julie_amero_case/
You can find lots of other dead-tree-media stories and blogifications about Julie Amero by typing her name into your favorite search engine, but IMO most of them are merely reporting, or bemoaning, that this substitute teacher was convicted in Norwich, Connecticut, USA, of felony "endangering the morals of minors" by allegedly exposing her students to internet porn on her classroom computer. I knew nothing of the case until coming across a brief article this morning in my local legal newspaper, the Maryland Daily Record, which got me Googling for other stories to find out what really happened. IMO the URL cited above dissects the computer forensic evidence presented at the case in full detail and with more understanding than most of the other blather you'll likely find.
Of course, the way both sides botched the investigation, perhaps we'll never really know. My own gut feeling after reading the article is, the probability of this 40-year-old, non-computer-savvy female teacher being so obtuse about the current witchhunt legal climate re: kids and porn, that (while in a classroom full of eagerly watching 7th-graders) she would intentionally and openly access websites plastered with (tiny)* photos of naked people having sex, is next to nil, compared to the far more likely cause, malicious adware. But she got convicted and may face a sentence of up to 40 years in the pokey along with being branded for life as a registered "sex offender".
* (According to the cited article, none of the JPGs found by the forensics exam of the classroom computer were larger than 10-15kb, about the size of the images in a pop-up ad, not the real full-size stuff an actual websurfer would be looking for; and there were other very strong indications of automated adware, not intentional typing of URLs by the teacher, being the source of the pop-up pages -- which somehow never really got brought out at her trial)
Meanwhile, of course, the real offenders for throwing this stuff in the kids' faces IMO are the Russian and Ukranian porn websites discussed in the article, which load malware and adbots on unprotected computers; and as accessories-before-the-fact to their crime, the brain-disconnected school administrators in the quaint, old-fashioned burg of Norwich, whose in-classroom, internet-connected school computers were running the now-unpatchable Windows 98, had no firewalls or antispyware/adware busters installed whatsoever, whose multi-user hard disks were crammed with enough active junkware to choke a horse, and whose antivirus patches were about 3 months out of date because of unpaid vendor bills. On top of which, they gave the sub strict instructions NOT to turn off the classroom computer under any circumstances because she didn't have a password (it was logged on under the name and account of the regular full-time teacher) and therefore would not be able to turn it back on.
So maybe poor Julie was also not running on all cylinders when, as the pop-up barrage began shortly after she took over the class at 9 am and chased away from the computer a group of pubescent girls who had been accessing what they thought was a "hairstyles" website, she didn't recognize what was happening and (a) unplug the computer anyway, finding something else to teach her kids for the next 6 hours (and hoping she didn't fry the school's hard disk by doing so), or (b) just turn off the friggin' monitor to immediately end the unwanted visual exposure and give herself a breather, buying time to consider other options without any need of rebooting the system, or (c) "throw a sweater over it" fer krissake, as one prosecutor suggested she could have done, to protect the tender eyes. (The "cashmere defense"?) But by all accounts, the porn storm only lasted a couple of minutes, and the rest of the class day was spent normally, including continued classroom access to a variety of harmless websites -- until the kids went home and gleefully told their parents, "Guess what Ms. Amero let us watch in class today?" Firing, and indictments, soon ensued.
Maybe Julie should have done more to prevent the kids in her class from seeing the smut that popped up even if she had nothing to do with it being there; or maybe she did do all she could, and it worked. But I don't think she should be branded a sex felon. Who knows? Read the article.
Comments welcome.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
"Was Julie Amero Wrongly Convicted?" _The_Register_, 14 Feb. 2007:
http://www.theregister.co.uk/2007/02/14/julie_amero_case/
You can find lots of other dead-tree-media stories and blogifications about Julie Amero by typing her name into your favorite search engine, but IMO most of them are merely reporting, or bemoaning, that this substitute teacher was convicted in Norwich, Connecticut, USA, of felony "endangering the morals of minors" by allegedly exposing her students to internet porn on her classroom computer. I knew nothing of the case until coming across a brief article this morning in my local legal newspaper, the Maryland Daily Record, which got me Googling for other stories to find out what really happened. IMO the URL cited above dissects the computer forensic evidence presented at the case in full detail and with more understanding than most of the other blather you'll likely find.
Of course, the way both sides botched the investigation, perhaps we'll never really know. My own gut feeling after reading the article is, the probability of this 40-year-old, non-computer-savvy female teacher being so obtuse about the current witchhunt legal climate re: kids and porn, that (while in a classroom full of eagerly watching 7th-graders) she would intentionally and openly access websites plastered with (tiny)* photos of naked people having sex, is next to nil, compared to the far more likely cause, malicious adware. But she got convicted and may face a sentence of up to 40 years in the pokey along with being branded for life as a registered "sex offender".
* (According to the cited article, none of the JPGs found by the forensics exam of the classroom computer were larger than 10-15kb, about the size of the images in a pop-up ad, not the real full-size stuff an actual websurfer would be looking for; and there were other very strong indications of automated adware, not intentional typing of URLs by the teacher, being the source of the pop-up pages -- which somehow never really got brought out at her trial)
Meanwhile, of course, the real offenders for throwing this stuff in the kids' faces IMO are the Russian and Ukranian porn websites discussed in the article, which load malware and adbots on unprotected computers; and as accessories-before-the-fact to their crime, the brain-disconnected school administrators in the quaint, old-fashioned burg of Norwich, whose in-classroom, internet-connected school computers were running the now-unpatchable Windows 98, had no firewalls or antispyware/adware busters installed whatsoever, whose multi-user hard disks were crammed with enough active junkware to choke a horse, and whose antivirus patches were about 3 months out of date because of unpaid vendor bills. On top of which, they gave the sub strict instructions NOT to turn off the classroom computer under any circumstances because she didn't have a password (it was logged on under the name and account of the regular full-time teacher) and therefore would not be able to turn it back on.
So maybe poor Julie was also not running on all cylinders when, as the pop-up barrage began shortly after she took over the class at 9 am and chased away from the computer a group of pubescent girls who had been accessing what they thought was a "hairstyles" website, she didn't recognize what was happening and (a) unplug the computer anyway, finding something else to teach her kids for the next 6 hours (and hoping she didn't fry the school's hard disk by doing so), or (b) just turn off the friggin' monitor to immediately end the unwanted visual exposure and give herself a breather, buying time to consider other options without any need of rebooting the system, or (c) "throw a sweater over it" fer krissake, as one prosecutor suggested she could have done, to protect the tender eyes. (The "cashmere defense"?) But by all accounts, the porn storm only lasted a couple of minutes, and the rest of the class day was spent normally, including continued classroom access to a variety of harmless websites -- until the kids went home and gleefully told their parents, "Guess what Ms. Amero let us watch in class today?" Firing, and indictments, soon ensued.
Maybe Julie should have done more to prevent the kids in her class from seeing the smut that popped up even if she had nothing to do with it being there; or maybe she did do all she could, and it worked. But I don't think she should be branded a sex felon. Who knows? Read the article.
Comments welcome.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Adoption, artificial insemination, and child support
On Feb 12, 7:36 am, gordonb.j9...@burditt.org (Gordon Burditt) wrote:
[Dick Adams wrote:]
> >It is important to note that insemination by donor with the
> >written contractual consent of the husband is the legal
> >equivalent of an adoption. My interpretation of this is
> >that the donor in such contracts has no legal/financial
> >responsibilities.
>
> Does even that work against a state looking for child support? If
> my child was adopted by someone else (legally and with all the
> paperwork), am I on the hook if the adoptive parents later fall on
> hard times and can't support the child?
Unless the laws of the state in question are so messed up as to be badly in need of corrective revision, or unless something goes wrong with the particular adoption process so that the adoption never becomes finally effective, adoption is supposed to completely terminate all parental rights _and_ duties of the relinquishing birth parents, as far as the law is concerned. If an adoptive parent goes on welfare, the state should not be able to look to the rights-relinquishing birth parents for child support.
> >The case of unmarried women poses problems that are beyond
> >the scope of my very limited knowledge which may not be
> >current. If anyone can update/correct what I have writte,
> >please do so.
>
> Any married woman can become unmarried quickly. All it takes is
> a drive-by, heart attack, drunk driver, medical mistake, or any
> of lots of ways for the husband to die.
The "married" status -- for purposes of laws presuming a child conceived during a marriage to be the legitimate offspring of the then-husband -- is determined at the moment of the procreative event, not thereafter (e.g. at birth). So if Dad walks in front of a bus on his way escorting Mom home from the artificial-insemination clinic, or even if he has a heart attack while still in the doctor's office but _after_ the insemination-by-donor occurred, Junior is still legally considered the (late) husband's natural child. Again YMMV so check local law, but that's the way it _should_ work.
Also, it shouldn't matter whether, assuming science is sensitive enough to detect relevant data long after the fact in a particular case, actual conception (fertilization of the ovum and creation thereby of a diploid zygote) or placental implantation occurs several hours or even days after Hubby kicked the bucket; what should matter time-wise is the precise instant when the semen was introduced into the vagina, which would fully account for the Hubby-got-hit-by-a-bus-before-Junior-came-into-being conundrum if you want to split hairs. Now, if Hubby has his heart attack in the middle of the insemination process, I can't tell what a court would rule in that event, although maybe it would help to consider that if a natural father pulled a Nelson Rockefeller while engaged in procreation, that would seem to fall on the still-alive-at-the-critical-moment side of the line if enough sperm got out to create Junior before his ticker stopped ticking.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
[Dick Adams wrote:]
> >It is important to note that insemination by donor with the
> >written contractual consent of the husband is the legal
> >equivalent of an adoption. My interpretation of this is
> >that the donor in such contracts has no legal/financial
> >responsibilities.
>
> Does even that work against a state looking for child support? If
> my child was adopted by someone else (legally and with all the
> paperwork), am I on the hook if the adoptive parents later fall on
> hard times and can't support the child?
Unless the laws of the state in question are so messed up as to be badly in need of corrective revision, or unless something goes wrong with the particular adoption process so that the adoption never becomes finally effective, adoption is supposed to completely terminate all parental rights _and_ duties of the relinquishing birth parents, as far as the law is concerned. If an adoptive parent goes on welfare, the state should not be able to look to the rights-relinquishing birth parents for child support.
> >The case of unmarried women poses problems that are beyond
> >the scope of my very limited knowledge which may not be
> >current. If anyone can update/correct what I have writte,
> >please do so.
>
> Any married woman can become unmarried quickly. All it takes is
> a drive-by, heart attack, drunk driver, medical mistake, or any
> of lots of ways for the husband to die.
The "married" status -- for purposes of laws presuming a child conceived during a marriage to be the legitimate offspring of the then-husband -- is determined at the moment of the procreative event, not thereafter (e.g. at birth). So if Dad walks in front of a bus on his way escorting Mom home from the artificial-insemination clinic, or even if he has a heart attack while still in the doctor's office but _after_ the insemination-by-donor occurred, Junior is still legally considered the (late) husband's natural child. Again YMMV so check local law, but that's the way it _should_ work.
Also, it shouldn't matter whether, assuming science is sensitive enough to detect relevant data long after the fact in a particular case, actual conception (fertilization of the ovum and creation thereby of a diploid zygote) or placental implantation occurs several hours or even days after Hubby kicked the bucket; what should matter time-wise is the precise instant when the semen was introduced into the vagina, which would fully account for the Hubby-got-hit-by-a-bus-before-Junior-came-into-being conundrum if you want to split hairs. Now, if Hubby has his heart attack in the middle of the insemination process, I can't tell what a court would rule in that event, although maybe it would help to consider that if a natural father pulled a Nelson Rockefeller while engaged in procreation, that would seem to fall on the still-alive-at-the-critical-moment side of the line if enough sperm got out to create Junior before his ticker stopped ticking.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Be wary of will-drafting websites and programs
On Feb 12, 7:35 am, tom...@hotmail.com wrote:
> Has anyone used the following website website [omitted].
> It provides online wills. The site has many online e-books and looks
> very professional. It appears very professional and offers a extensive
> free will and estate planning guide which is very professionally.
What is your relationship to the site you mention? Are you spamming for them? I'll give you the benefit of the doubt but the wording of your post sounds like it came straight off the site's promotional materials.
> Any suggestions on online will providers??
The main suggestion I have for using them is, beware of what you ask for, since you might get it. Like the Sorcerer's Apprentice (Mickey in Fantasia, for those who don't know the classical allusion) you will know enough (with the help of the site) to create a legally binding will, but you will have no idea how to turn it off -- i.e. what will come out at the other end, after you die. And by then, it will be too late to change. You may wind up disinheriting (in whole or in part) a person you wanted to especially benefit, or seeing (as you look down from Heaven, or the other place) the bulk of your estate going to a despised relative you wanted to get nothing. And other things may happen before you die as to which, in the absence of your (or your lawyer's) having enough foresight to include clauses in your Will to deal with all those eventualities, the law will have to "plug in" its presumptions about what the _average_ Testator (the person making the Will) would have wanted (i.e. apply the local "Intestacy Laws"). This may or may not give the result YOU wanted.
Only a trained professional can take the facts of your situation, and your desired outcome, and tell you with confidence how to get from point A to point B while avoiding C. And getting a will drafted by an actual lawyer is usually one of the least expensive kinds of legal services; many lawyers even offer it as kind of a "loss leader" in terms of the actual time and effort they put into it for you, in hopes that, once you have an established relationship, you may come back to them with other legal needs, at least when it is time to probate the Will. Of course, you have no such obligation, but you get the benefit of the low initial price.
I'd be very interested to hear from anybody whose now-deceased ancestors actually used a "canned" will of some kind (online or from a book; those kind of self-help books have been around for decades) in a situation where some unexpected twist occurred and the Will contained provisions that handled it with aplomb when it was finally probated. My guess is most of them wound up with a large heap of anguish before sorting it all out, if anything other than a simple and straight "All to my dear wife" or "All to my children" was what was written, and what actually happened. If you draft a simple Will with no "what if" provisions, you would be taking a big risk that nobody crucial would die unexpectedly before Testator did, that the intestacy laws wouldn't change (or the Testator wouldn't move to a state with different laws), and that the result of application of those laws would match your actual expectations about final distribution of your Estate.
Secondly, there is a lot more to proper estate planning than just drafting a Will. Unless you are so impecuniouis that you frankly don't even really need a Will, you will need to consider tax consequences, Medicaid and long-term-care, as well as end-of-life medical issues. Or you may want to set up a living trust for your grandchildren if your adult children are ne'er-do-wells or just for the tax benefits. A good trusts-and-estates lawyer can look at your whole situation and recommend the best solution, or several good solutions for you to pick from. Otherwise, doing your own Will is a lot like going to the pharmacy (in the land of do-it-yourself medicine, no Rx required) and picking the powerful drugs that you think will cure what you think you have, based on what you read in the Handy Pocket Family Medical Guide. You may wind up poisoning yourself instead, or beingcrippled or killed by the illness that you tried unsuccessfully to treat. Would you take out your own appendix?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Has anyone used the following website website [omitted].
> It provides online wills. The site has many online e-books and looks
> very professional. It appears very professional and offers a extensive
> free will and estate planning guide which is very professionally.
What is your relationship to the site you mention? Are you spamming for them? I'll give you the benefit of the doubt but the wording of your post sounds like it came straight off the site's promotional materials.
> Any suggestions on online will providers??
The main suggestion I have for using them is, beware of what you ask for, since you might get it. Like the Sorcerer's Apprentice (Mickey in Fantasia, for those who don't know the classical allusion) you will know enough (with the help of the site) to create a legally binding will, but you will have no idea how to turn it off -- i.e. what will come out at the other end, after you die. And by then, it will be too late to change. You may wind up disinheriting (in whole or in part) a person you wanted to especially benefit, or seeing (as you look down from Heaven, or the other place) the bulk of your estate going to a despised relative you wanted to get nothing. And other things may happen before you die as to which, in the absence of your (or your lawyer's) having enough foresight to include clauses in your Will to deal with all those eventualities, the law will have to "plug in" its presumptions about what the _average_ Testator (the person making the Will) would have wanted (i.e. apply the local "Intestacy Laws"). This may or may not give the result YOU wanted.
Only a trained professional can take the facts of your situation, and your desired outcome, and tell you with confidence how to get from point A to point B while avoiding C. And getting a will drafted by an actual lawyer is usually one of the least expensive kinds of legal services; many lawyers even offer it as kind of a "loss leader" in terms of the actual time and effort they put into it for you, in hopes that, once you have an established relationship, you may come back to them with other legal needs, at least when it is time to probate the Will. Of course, you have no such obligation, but you get the benefit of the low initial price.
I'd be very interested to hear from anybody whose now-deceased ancestors actually used a "canned" will of some kind (online or from a book; those kind of self-help books have been around for decades) in a situation where some unexpected twist occurred and the Will contained provisions that handled it with aplomb when it was finally probated. My guess is most of them wound up with a large heap of anguish before sorting it all out, if anything other than a simple and straight "All to my dear wife" or "All to my children" was what was written, and what actually happened. If you draft a simple Will with no "what if" provisions, you would be taking a big risk that nobody crucial would die unexpectedly before Testator did, that the intestacy laws wouldn't change (or the Testator wouldn't move to a state with different laws), and that the result of application of those laws would match your actual expectations about final distribution of your Estate.
Secondly, there is a lot more to proper estate planning than just drafting a Will. Unless you are so impecuniouis that you frankly don't even really need a Will, you will need to consider tax consequences, Medicaid and long-term-care, as well as end-of-life medical issues. Or you may want to set up a living trust for your grandchildren if your adult children are ne'er-do-wells or just for the tax benefits. A good trusts-and-estates lawyer can look at your whole situation and recommend the best solution, or several good solutions for you to pick from. Otherwise, doing your own Will is a lot like going to the pharmacy (in the land of do-it-yourself medicine, no Rx required) and picking the powerful drugs that you think will cure what you think you have, based on what you read in the Handy Pocket Family Medical Guide. You may wind up poisoning yourself instead, or beingcrippled or killed by the illness that you tried unsuccessfully to treat. Would you take out your own appendix?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Class action - should I opt out?
On Feb 10, 7:33 am, "nomail1...@hotmail.com" <nomail1...@hotmail.com> wrote:
[OP gets notices of potential class action settlements]
> One of the options is to exclude myself from the class.
For purposes of SETTLEMENT, that is. You either are or are not, by definition, a member of the affeced class, if you meet all the qualifications to be a member: e.g. "all persons who bought a z-27 SuperWidget from XYZ Widget Co. between January 1, 1998 and December 31, 2002" for example. Either you did or didn't buy a SuperWidget during that time period.
> Other than personal principles and loyalties, perhaps,
That has nothing to do with it. If you do nothing, you remain a class member for purposes of being BOUND BY the settlement, meaning you are then PRECLUDED from bringing a separate suit for your own separate injury against that defendant arising from the subject matter of the class action, e.g. your purchase of a defective SuperWidget. As you will see below, it is only the NON-loyal customers (the ones who want to sue the bastards for MORE than the class action would give them) who have any reason to opt out of the class.
> is there
> any reason that a person should consider excluding him/herself
> from the class?
Yes. If your lawyer (PLEASE don't make a decision to exclude yourself from a class without a lawyer) recommends that your case is probably worth a lot MORE than the proposed class action settlement would give you, AND if both he, and you, are willing to take on the burden of investigating and pursuing a separate lawsuit to get your OWN separate case handled outside of the class action framework, then by all means you should opt out. Now, if all you would get out of this settlement is a coupon worth a few bucks toward your next purchase of a SuperWidget, and if that's really all you lost, no real big harm would be done either way, but why bother to take the time to file the papers to exclude yourself from the class? Even if you remain a class member and are thereby bound by the terms of the settlement once it gets approved, no one is forcing you to accept the coupon, or to be anything other than a continued loyal customer of XYZ Widgets if that's what you want to be.
But take, for example (even though it wasn't EXACTLY a "class action"), the no-fault compensation fund that the government offered to families of victims of the 9-11-01 attacks, which in most cases amounted to at least several hundred thousands of dollars per family even for a janitor or sandwich boy, sometimes millions each (don't forget, a lot of the people killed were high-priced Wall Streeters and the value of their death claims was higher based on the lost earning capacity they would have provided to their families if they had lived). But to get that settlement, the families had to give up the right to sue anyone (other than the terrorist entities responsible, but lots of luck with that) for that loss. Most families did take the "class" settlement, but a significant number opted out before the claim filing deadline and are pursuing claims in court against the affected airlines, security screeners, etc. for their negligence in permitting the disaster to happen. AFAIK all of those cases are still pending and are nowhere near resolution, but obviously those families' lawyers felt they had a shot at a settlement worth many times more than what the government fund was offering -- otherwise it would have been stupid to opt out and pass up the government's generous offer.
> Is there any downside to participating in the
> settlement.
If you don't opt out, you are bound by the terms of the settlement, whether those terms are good or bad for you. If you DO opt out, you are on your own, and have to pursue your own remedies separately in a timely separate suit if you choose to do so (which is the only sensible reason anyone would choose to opt out IMO).
> Or is the option merely following legal requirements to the letter
That too, from the class representatives' viewpoint. The named plaintiffs in the class suit (and their lawyers), as representatives of the class, have a legal duty to provide notice of the class action to all affected class members, as well as to notify you of a potential settlement before it becomes final so you can opt out at that point if you choose.
That is one of the procedural due process requirements of pursuing a class action, and also one of the reasons why class actions are a horrendously large expense for the involved attorneys to prosecute -- the postage and paper alone, to notify a class with hundreds of thousands or even millions of members, is a huge cost. Only the most well-heeled and capable attorneys even attempt to handle class actions. Obviously, boys and girls, you should not try this at home WITHOUT an attorney.
From the defendant's point of view, they would like as many class members as possible to REMAIN bound by the settlement, so they can take care of their liabilities with one fell swoop and not face a horde of separate suits. In fact, if too many class members opt out, that may screw the settlement altogether since the defendant wouldn't see any benefit in paying a few million bucks to the class representatives' lawyers (of which they would typically take the customary 1/3 off the top, plus reimbursement for their huge expenses, distributing the rest to the affected class members) if they would still face millions of dollars in additional exposure to individual suits. This likewise works to make the defendant ensure that any proposed class action settlement will be fair enough to the affected class members that most of them will NOT opt out, thus capping the company's potential outlay at the known and agreed figure.
> ("you can lead a horse to water, but you are not permitted to
> make him drink")?
Sort of, but even being part of a class action class doesn't mean you have to DO anything. It just means that, if a settlement or judgment is reached and you have not affirmatively chosen to opt out of the class, you will be bound by the result and cannot later bring your own separate suit. If you weren't planning to do that anyway, then who cares? A better way to phrase it is, "you can offer a horse hay but you can't force him to eat it if he thinks the oats he might get later would be tastier."
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
[OP gets notices of potential class action settlements]
> One of the options is to exclude myself from the class.
For purposes of SETTLEMENT, that is. You either are or are not, by definition, a member of the affeced class, if you meet all the qualifications to be a member: e.g. "all persons who bought a z-27 SuperWidget from XYZ Widget Co. between January 1, 1998 and December 31, 2002" for example. Either you did or didn't buy a SuperWidget during that time period.
> Other than personal principles and loyalties, perhaps,
That has nothing to do with it. If you do nothing, you remain a class member for purposes of being BOUND BY the settlement, meaning you are then PRECLUDED from bringing a separate suit for your own separate injury against that defendant arising from the subject matter of the class action, e.g. your purchase of a defective SuperWidget. As you will see below, it is only the NON-loyal customers (the ones who want to sue the bastards for MORE than the class action would give them) who have any reason to opt out of the class.
> is there
> any reason that a person should consider excluding him/herself
> from the class?
Yes. If your lawyer (PLEASE don't make a decision to exclude yourself from a class without a lawyer) recommends that your case is probably worth a lot MORE than the proposed class action settlement would give you, AND if both he, and you, are willing to take on the burden of investigating and pursuing a separate lawsuit to get your OWN separate case handled outside of the class action framework, then by all means you should opt out. Now, if all you would get out of this settlement is a coupon worth a few bucks toward your next purchase of a SuperWidget, and if that's really all you lost, no real big harm would be done either way, but why bother to take the time to file the papers to exclude yourself from the class? Even if you remain a class member and are thereby bound by the terms of the settlement once it gets approved, no one is forcing you to accept the coupon, or to be anything other than a continued loyal customer of XYZ Widgets if that's what you want to be.
But take, for example (even though it wasn't EXACTLY a "class action"), the no-fault compensation fund that the government offered to families of victims of the 9-11-01 attacks, which in most cases amounted to at least several hundred thousands of dollars per family even for a janitor or sandwich boy, sometimes millions each (don't forget, a lot of the people killed were high-priced Wall Streeters and the value of their death claims was higher based on the lost earning capacity they would have provided to their families if they had lived). But to get that settlement, the families had to give up the right to sue anyone (other than the terrorist entities responsible, but lots of luck with that) for that loss. Most families did take the "class" settlement, but a significant number opted out before the claim filing deadline and are pursuing claims in court against the affected airlines, security screeners, etc. for their negligence in permitting the disaster to happen. AFAIK all of those cases are still pending and are nowhere near resolution, but obviously those families' lawyers felt they had a shot at a settlement worth many times more than what the government fund was offering -- otherwise it would have been stupid to opt out and pass up the government's generous offer.
> Is there any downside to participating in the
> settlement.
If you don't opt out, you are bound by the terms of the settlement, whether those terms are good or bad for you. If you DO opt out, you are on your own, and have to pursue your own remedies separately in a timely separate suit if you choose to do so (which is the only sensible reason anyone would choose to opt out IMO).
> Or is the option merely following legal requirements to the letter
That too, from the class representatives' viewpoint. The named plaintiffs in the class suit (and their lawyers), as representatives of the class, have a legal duty to provide notice of the class action to all affected class members, as well as to notify you of a potential settlement before it becomes final so you can opt out at that point if you choose.
That is one of the procedural due process requirements of pursuing a class action, and also one of the reasons why class actions are a horrendously large expense for the involved attorneys to prosecute -- the postage and paper alone, to notify a class with hundreds of thousands or even millions of members, is a huge cost. Only the most well-heeled and capable attorneys even attempt to handle class actions. Obviously, boys and girls, you should not try this at home WITHOUT an attorney.
From the defendant's point of view, they would like as many class members as possible to REMAIN bound by the settlement, so they can take care of their liabilities with one fell swoop and not face a horde of separate suits. In fact, if too many class members opt out, that may screw the settlement altogether since the defendant wouldn't see any benefit in paying a few million bucks to the class representatives' lawyers (of which they would typically take the customary 1/3 off the top, plus reimbursement for their huge expenses, distributing the rest to the affected class members) if they would still face millions of dollars in additional exposure to individual suits. This likewise works to make the defendant ensure that any proposed class action settlement will be fair enough to the affected class members that most of them will NOT opt out, thus capping the company's potential outlay at the known and agreed figure.
> ("you can lead a horse to water, but you are not permitted to
> make him drink")?
Sort of, but even being part of a class action class doesn't mean you have to DO anything. It just means that, if a settlement or judgment is reached and you have not affirmatively chosen to opt out of the class, you will be bound by the result and cannot later bring your own separate suit. If you weren't planning to do that anyway, then who cares? A better way to phrase it is, "you can offer a horse hay but you can't force him to eat it if he thinks the oats he might get later would be tastier."
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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