Friday, November 15, 2019

Just call me Captain Obvious

It's cold outside, baby
The other day as I was doing my Librarian thing, I happened to stop and talk with a student here at the law school.  Seems she was freezing.  I mean, it was 47 degrees outside and what with her sitting about 20 feet from a door that opened from time to time, who could blame her for being chilled?

Except that laying right next to her was a jacket.  A warm jacket.  I'm looking at this jacket while listening to student tell me they are freezing and I ask, "is that your jacket."  Yes.  Yes it was.  I ask, "if that's your jacket and you are freezing, why are you not wearing your warm jacket to keep from freezing?!"  A reasonable question, to be sure.

Student says, "it clashes with my outfit - and besides, my ears are cold, too." As I helped student put her jacket on I noticed that the jacket had a hood - you know, the ones that can keep your head and ears warm?  I says to student, "you know, if you put your hood on, you can keep your ears warm, too..."

Shaking my head in disbelief, I walked away.  How in blazes (or why in blazes) would a person willingly freeze when relief was not 6 inches away.  Why?!?

As it turns out, I found myself asking a similar question not a few hours later as I helped an attorney with their research.  Seems attorney was looking for information to help with an upcoming trial.

Seems attorney had an client who claimed that her doctor had mis-prescribed an anti-depressant resulting in making her depressed condition worse (nasty dream, headaches, that sort of thing).

I suggest to attorney that he look at American Jurisprudence (aka AmJur) Trials.  Officially, Am Jur Trials is an encyclopedic guide to the modern practices, techniques, and tactics used in preparing and trying cases with model programs for handling all types of litigation.  

Unofficially, AmJur Trials is was awesome - simply one of the best resources a legal practitioner can use to prepare for trial.  Heck, I used it in law school to help me get ready for my classes for Evidence, Trial Advocacy, Remedies, and Civil Procedure (among others). 

Anyway, I suggested attorney take a look at Volume 17, page 485 (Litigation Regarding Antidepressant Medications).  

Attorney, however, was impatient and didn't want to have to slog through a book (millennial, and all).  Ignored my suggestions, attorney choose instead to slog through South Carolina Jurisprudence (which, I have to say, while it has some good points, it is not well written and is not a good resource on which to rely when conducting legal research).  Attorney left a while after unsatisfied with his efforts.  

Well, of course he left unsatisfied - he blew off the one person who actually could help.  

I mean why in blazes would an attorney (or anyone, for that matter) go to a law library and ignore the one person who both knows their collection like the back of their hand and can actually help them find answers to their legal research problems?  WHY!?!  

Yeah, attorney should have listened to the Librarian because we're here to help you find what you need (even if all you need is a warm jacket).

Monday, October 14, 2019

It's not my fault

So, the other day as I was surfing the net, I came across a really great blog/article: Seven Things Law Students need to Stop Doing Immediately by Ariel Salzer.  Great article, it is.  The main points she brings up are:

1. Stop blaming your professor
2. Stop assuming things will get easier on their own
3. Stop failing to do the basics and then wonder why you're confused
4. Stop relying too much on your study group
5. Stop complaining
6. Stop expecting people to be nice to you
7. Enough already with the law school classmate drama

As great as this list is, I would like to add one more:

Stop saying, "It's not my fault"

Once upon a time, I worked with a solo practicing attorney (that's "solo" as in he's the only attorney in the office) in Sunny Southern California.  Attorney was a nice enough guy except for the fact that every time something went wrong, it was always someone elses fault.  Missed a deadline?  Someone elses fault.  Typo in a letter (that he wrote)?  Someone elses fault.  Forgot someone's name?  Someone elses fault.  Something didn't get filed?  Everyone elses fault.

On this last one:  Something didn't get filed, he was the worst; and if you know anything about law or legal things, if something doesn't get filed and you show up to court and the judge has to ask why you are there because he has nothing on his docket and you turn all red, run back to the office and start blaming everyone, well, you've got issues.

Now, to be fair, sometimes it was the clerk's fault.  They would mis-file something, not conform a copy, or things would just get lost in the shuffle.

After the 10th time of getting blamed for things I had no control over (i.e. filing), I suggested attorney ask the clerk (when he filed something) to get a receipt showing that he had filed his documents.  That way, when the judge said why are you in my courtroom, attorney could whip out the receipt and, at least, have something to argue with.

This, of course, brings us to law students who blame everyone for their lack.  In fact, the other day, I had a student send me this long winded email about how I was negligent for marking their paper as a FAIL because they had "completed the paper just like you said we should do as per your lecture!  So why did I fail the assignment?!"

I replied that said student failed because they never submitted an assignment.  Oops.

Student, wisely backtracked sending a follow-up email showing that the system sent them a confirmation that they had indeed submitted something.  I suggested that, in the future, they confirm with the person who received the assignment to ascertain whether they had, in fact, actually received it.  I'm just sayin.

So, moral to the story, if there is a possibility that something can get screwed up, and there is a possibility that either it could be you (or someone) that could have screwed it up, buck up and take responsibility for it (because, ultimately, it's your work product).  Don't go off half-cocked blaming your professor (or wife, husband, kids, judge, attorney, mother, dad, uncle, aunt, whomever) for your lack of attention.  

It's your work, it's your (as in YOU and not everyone elses) job to get it filed.  Deal with it.

Monday, September 30, 2019

Does Anyone Else Think this is Crazy?

Just a bag of crazy
There is a whole lot of crazy going on in South Carolina.  First, there was the settlement for $975,000 to a woman who was thrown from a car driven by a DRUNK friend (I mean, what crazy person knowingly drives with a known drunk person?).  Then there was $3.4 million awarded to a guy who broke his neck whilst riding a bicycle on a sidewalk?!?  Something fishy is going on there, let me tell you!

Then just as I was about to get my law Librarian groove on, I happened to open a past edition of the South Carolina Lawyers Weekly and noted on the front cover a story about a 3-year old kid who had drowned.  OK, what caught my attention wasn't so much the fact that a kid died as it was they family of the kid settled with the apartment complex where the kid died for $6 million dollars.  That's right, SIX MILLION (and I'll bet bionics weren't even involved).

So, as the story goes, this 3-year old kid (who was being "watched" by  his aunt and grandmother) is playing around this apartment complex.  At some point, aunt and grandmother get engrossed in their conversation that they don't bother keeping an eye on kid who had wandered  through an unlocked gate into the apartment complex pool and subsequently drowned.  That's some serious contributory negligence, right there - which should have negated any recovery by the family.  Yeah, the gate wasn't locked but really, not watching a 3-year old is just stupid.

My question is, why isn't parents being charged with child endangerment?  I mean, grandmother and aunt can't get off their backsides ato keep an eye on their nephew/grandkid and now the family (and, I suspect aunt/grandmother are recipients of the windfall, too) get to revel in their new found wealth?  What a freaking crock!

So, the problem with all this is that the laws in South Carolina are so skewed to the crazy side that it's not safe to do business here.  Crazy politics aside, California (who follows a comparative negligence standard) got it right when they abolished contributory negligence as a standard.  

In California, if someone is 51% at fault, they don't get anything - as it should be.  Here in South Carolina, if someone is 99% at fault (as aunt/grandmother was), they can still collect 1%.  So, picture it, someone gets injured and they sue for a billion dollars.  Evidence comes in and it is found that they were 99% at fault.  If the matter goes to trial, they still stand to make $10,000,000 (that's 10 million) in South Carolina.

Is this crazy, or what?!?

And this happens all the time in South Carolina.  Someone stubbs a toe, they settle for $1,000,000.  Someone gets offended by a blog post, another couple million.  Who in their ever lovin' mind would ever want to do business in a jurisdiction where they could lose everything at the drop of a hat is beyond me.  I'm thinking that maybe time to delve into this legal insanity and change some negligence laws?

Just maybe.

Monday, September 23, 2019

Do over

Appellate Courts are fickle
Have you ever wondered, what with all the lawsuits filed and appealed and sent through the system, exactly how many times appellate courts get reversed by the SCOTUS?  

So, picture it, someone sues another person in federal court, the case gets appealed and then appealed again to the Supreme Court of the USA.  What percentage of cases get reversed when the case goes from the Federal appellate court to the SCOTUS.

What got me thinking about this was when I read a recent opinion (Small v. WellDine Inc.) sent from the 4th Circuit court of appeal in North Carolina.  Seems a pharmacist had made a mistake when filling a prescription.  Seems the pharmacist had filled sent the wrong pills to the wrong person.  Seems the person who got the wrong pills didn't bother to look at the label before taking the pills resulting in the patient's death six weeks later.

The court, in it's decision, noted that failure to read the label on the bottle of pills was not contributory negligence as a matter of law meaning that (and it was the defendant's contention that) the patient should have read the label of the bottle before popping the pills.

This brings me to the original point.  See, on first read, my inner lawyer swelled up and I was thinking what dimwit doesn't read the label of pills before taking them?  If nothing else, I'll read a label simply to know how many pills to take and when.  

Also, has anyone ever gone for a physical and the doctor starts asking what drugs they take?  I don't take anything right now but for a while I had one that was particularly difficult to remember (let alone pronounce) and I had to call the wife to find out what it was I was taking - and when.

The point is, everyone reads labels.  Not reading a label is foolish and in my estimation, the court was a bit too liberal in granting the appeal.  Which brings me to my point - what percentage of cases that get appealed to the SCOTUS are reversed?  According to Ballotpedia, since 2007, the 4th Circuit Court of Appeals has been reversed only about 56% and, according to the chart below, it was reversed only about 50% since 2018.  Not bad.

SCOTUS decisions by circuit, 2018
CourtDecidedAffirmedReversedPercent Reversed
First Circuit21150.0%
Second Circuit51480.0%
Third Circuit31266.7%
Fourth Circuit42250.0%
Fifth Circuit42250.0%
Sixth Circuit74342.9%
Seventh Circuit101100%
Eighth Circuit41375.0%
Ninth Circuit1421285.7%
Tenth Circuit21150.0%
Eleventh Circuit74342.9%
D.C. Circuit32133.3%
Federal Circuit42250.0%
Armed Forces0000%
State Court112982.0%
U.S. District Court31266.7%
Original Jurisdiction0N/AN/AN/A

Well, not as bad as...say the Ninth Circuit Court of Appeal which holds the current record of 85.7%.  Can you say ouch?!  

If I were a sitting judge knowing that my decisions are so out of whack with the law that over 80% of my decisions were being reversed, I'd be going to work with a paper sack over my head.

So, why is this important?  I suspect it's more of a curiosity than anything but if I were filing suit in federal court, I'd want to make sure that if there were a possibility that the case might be appealed, I'd want to try my case in a court that had a better track record than the 9th circuit court of appeal.  I'm just saying.

Anyway, always good practice to keep a weathered eye on how the courts are deciding cases because you never know when you'll need an ace up your sleeve.

Monday, September 16, 2019

What a steaming pile of #$!@^!@#$!~!~!!

Government largess only helps thieves
You know what really torques my shorts?  People who waste my time.  Really gets me going.  Of course, it doesn't help matters when I visit places that are geared to wasting people's time - like the DMV.  See, a while ago, I moved family and myself to South Carolina.  One of the pitfalls of such is that, at some point, I needed to get a new drivers' license from South Carolina.

The (or a) problem is, I can't just get a drivers' license, anymore.  No, I have to get a REAL ID which requires about fourty-two (42) #@#^@#$!@#$!!! separate pieces of evidence that I am who I say I am.  I can't just produce 
  • a passport (which has my picture on it), 
  • a drivers' license from the last state I had been driving in for the last 5 decades (which happens to have my picture on it), 
  • W2 statements from my employer that I am who I say I am, 
  • Bill statements from the utility company that says I live where I say I live, 
No, I also have to produce another 10 !@#$!%!@$ documents which don't do anything other than tell prospective identity thieves exactly who I am and where I live so that when they go and create false documentation, they can get everything just right.

I'm guessing this is how South Carolina balances it's budget. Let's make it easy for thieves to make forged documents so that when the identify thieves hack the state computer systems (and I have no doubt that thieves do it regularly) and get all that information on everyone (that everyone had to produce to get a real ID), the state doesn't have to put them on the welfare roles.  

Yeah, instead of the state maintaining the standard of living for identify thieves, they can live off monies stolen from from the insurance companies (and those citizens not clever enough to have insurance to protect themselves).

Sounds about how government works;  make it difficult for tax-paying citizens to get an ID but make it easy for identify thieves to create fake documents.

Yep, that's your tax dollars at work.