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Tuesday, September 1, 2015

Word of the Month for September 2015: Undue Influence

Undue Influence
You ever notice that some people just seem to exist to serve as a warning for others?  Yeah, like all those people who win Darwin Awards, or people who keep responding to emails from people in Nigeria, or people who check the box on their tax return to donate $3 to politicians.  

Such was the case I had presented to me the other day.  Seems guy had a large holdings of real estate (i.e. on paper, he was filthy rich).  Seems guy was in his 90's, had recently had a high risk surgery, and was recently diagnosed with advancing dementia (i.e. he's about to lose his mind).  Seems also that guy had a "friend" who is encouraging him that before he completely lost his mind (non compis mentus, and all) that he create a trust and grant all his property to said friend.   

Turns out friend is with guy 8 hours a day and is the one person who helps guy change his diapers (my dad was in this boat and it really sucks), who helps guy remember to take his pills, who is the only person who talks to guy any more.  Is it any reason guy wants to give ALL his property to his friend?  On the surface, it all looks great - but then King Lear pops in my mind and guy's story all goes south.

Of course, this all brings us to this month's word of the month: UNDUE INFLUENCE.  According to Black's Law Dictionary, UNDUE INFLUENCE is defined as 
the improper use of power or trust in a way that deprives a person of free will and substitutes another's objective; the exercise of enough control over another person that a questioned act by this person would not have otherwise been performed, the person's free agency having been overmastered.
I suspect the question to be raised is whether someone would have done something but for the influence or interjection of another.  For example, a revered peer encourages another kid to steal something to show his loyalty to a group/gang.  Maybe, as here, the best example is where a trusted friend pressures a person to draft a will creating a legacy or gift for that "friend" by use of trickery, flattering, or suggestion.

While there may be none of this in guy's situation, I told guy that his best course of action would be to hire an attorney to draft his estate planning documents for him.  That way, neither "friend" nor anyone else can be accused of exercising UNDUE INFLUENCE as the attorney would be able to attest that guy had received adequate legal counsel and was able to make all gifts of his own free will.  

While I'm guessing that was not the answer "friend" wanted to hear, I'm hoping guy has enough going for him that he is willing to go the extra mile and make sure all his "t's" are crossed and "i's" are dotted before he moves on to greener pastures else "friend" won't get so much as a pot to piss in if/when loooooong lost family members suddenly re-appear to collect on the dearly departed's estate (as they often do when money is to be had).

Monday, August 24, 2015

I want it back

Illegal tenant screening fees
Every day I get told stories.  Some fanciful like the guy who swore the girl looked 21 and was now looking at a 288 charge.  Some scary like the guy who had been stalked by a rather large linebacker sized female.  Then there are some that make me wonder what people are thinking.

Take, for instance, the guy that came in the other day.  Seems he was looking for a place to live.  Having found an apartment complex he liked, he inquired as to it's availability.  The landlord informed him that he would have to pay $100 up front for an Application Screening.  Not a problem; guy ponied up the $100 and waited for a response.  The problem was, the landlord didn't have any vacancies when guy handed landlord the $100.  This is a problem (in California, anyway) because under California Civil Code section 1950.6(c), it reads:
Unless the applicant agrees in writing, a landlord or his or her agent may not charge an applicant an application screening fee when he or she knows or should have known that no rental unit is available at that time or will be available within a reasonable period of time.
Oops.  So, maybe landlord forgot - or maybe landlord was just looking for some poker money.  Either way, landlord is looking at some civil liability.  As such, with the look of righteous indignation burning in his eyes, I guide guy over to


and off guy goes looking to create some havoc for landlord. Score one for the little guy.  

Anyway, if you ever need help, head on over to your local county law library.  Soon, we'll have you on your path to your personal nirvana in no time.


Monday, August 17, 2015

What would you do?!

I'm shocked.  Just shocked!
So, I'm sitting at the reference desk and I see this guy hanging across the way over by the Federal Digest.  Normally, I go up to people who appear lost in the stacks but this guy wasn't lost.  He was watching me.  Basically, a stalker in the same room.

Three hours later, when no one is around (or within earshot), guy comes up to me and in a low, rasping hiss of a voice he asks, "I have a body in the back of my trunk.  What should I do?"  This is not the funkiest question I've ever been asked - but it was the funkiest of the week, to be sure.  Thing is, a quick assessment told me this was not a hardened criminal - "things" just happen.

Anyway, my first thought is to get this guy some representation.  So, we hop online to  Martindale.com to look for a criminal attorney.  Mardindale.com (the print version, of which, is called Martindale Hubble) is a pay-for-play database of attorneys who are very good at what they do.  It also has a rating system allowing colleagues and clients to rate the attorneys.  Get a low review long enough and they'll kick you out of the club.  Anyway, 5 minutes online and we were able to (discretely) find an attorney with which he was comfortable.

Then, knowing my library collection, as I do, I walked him over and we take a look at:
We get a whole lot of different people in our library.   Whatever your story might be, know that your local county law Librarian(s) know that this legal stuff can really take it out of you and have resources at our fingertips of which most people only dream.  Heck, Librarians can do what takes mere mortals hours to accomplish.  So, why not head on over to your local county law Librarian and let them help you find your way back to a calmer state of zen.

Monday, August 10, 2015

Word of the Month for August 2015: Nystagmus

Windows to the soul
This last month I attended the yearly AALL Annual Meeting and Convention for law Librarians. One of the presentations was entitled "Attorney Research Skills: Join the Conversation between Law Firm and Academic Law Librarians."  What I thought was funny was the description which read: "To more effectively teach legal research, academic law librarians must have a clearer understanding of how legal research is conducted in practice."  

This is "funny" because for YEARS I have had a running "debate" with law school libraries around the country about how to teach students of law.  What I hear repeatedly is that the primary function of law schools is to teach the theory of law, not practical application of law (i.e. research and representation).  Of course, that explains a lot (given the quality of questions I get on a near daily basis from students and graduates) and is probably why freshly minted students of law can't (by and large) find a job fresh out of law school (i.e. they're not marketable).

The problem with focusing on the theory of legal research, it is by using and doing in the "real world" that you learn the "how" of something.  While I may be a bit biased, I think the best place to help you DO your legal research is at your local county law library.  While you won't be a research guru overnight, I'm going to help you learn a little bit about "how" to go about doing a research project using our word for this month: NYSTAGMUS.  

Wait, what the heck is NYSTAGMUS?!  For the answer to this, we can first turn to the pre-eminent resources for all legal definitions - Black's Law Dictionary - which defines NYSTAGMUS as 
a rapid, involuntary jerking or twitching of the eyes, sometimes caused by ingesting drugs or alcohol.  See Horizontal-Gaze Nystagmus Test.  
A critical part of legal research is to pay attention to the words after "See" as they'll often come back to haunt you.  On a side note, nystagmus is also a condition that you can be born with (but try explaining that to a cop at 2:30AM who thinks your eyes are bouncing around because you are stone cold drunk/stoned).

Anyway, the next research-esque resource you might take a look at a general resource like Words and Phrases (West), Vol. 28B to locate some cases that talk about NYSTAGMUS.  Still not really understanding what NYSTAGMUS is or how it is applied (i.e. context), I might look in AmJur Proof of Facts, 1st Series (West), Volume 8 (pages 418 and 436), 22 and volume 22, page 143.  

Under the heading Horizontal Gaze Nystagmus Test (remember the "See" in Black's?), take a look at AmJur Proof of Facts, 3d series, Volume 4 page 439.  Next, you might want to take a look at AmJur Trials (West) Volume 59, page 95 (which has a really great discussion on the Horizontal Gaze Nystagmus Test).  Finally, I suggest you take a look at some topic specific resources like Attacking and Defending Drunk Driving Tests (James Publishing), Chp. 7 sections 140-161 and California Drunk Driving Defense (West), Chp. 9 section 14 and Chp. 11 sections 20 and 44.

And that's about it!  Oh, yeah - there are a few other doo dads you can use to find answers but these few resources will get you started with darn near any research project you might have.  While institutions of higher learning may never get their act together, know that your local county law library has just what you need to help get you (or your law practice) up and running with the big dogs.  Yeah, they are that good!

Monday, August 3, 2015

Oh Brother!

Oops, they did it again
Sometimes when I read cases freshly minted by the courts, I think, "you gotta be kidding me!"  or "you came to this decision, how?!"  Take, for instance the case I read today in the Daily Appellate Report, People v. Gross, 2015 DJDAR 8573. 

Seems, once upon a time, Rickey Gross pled guilty to two counts of second degree burglary and possession  of a destructive device.  At the time of sentencing, the court, in addition to sentencing Mr. Gross to 5+ years, ordered him to pay various fines and fees as well as restitution to his victims totaling $34,826.59.  That's a sizable lump of cash, to be sure!

Fast forward a few years and Mr. Gross does his time and is set free (with the cloud of having to pay off his fees and fines and restitution to his victims to the tune of $34,826.59 plus, I suspect, any interest accruing to that point).  Being a slick sort of guy, Mr. Gross tried an end run around the system and filed a motion to be relieved of his restitution obligation and for a refund of funds paid, to date.  The gall of some people, right?

Basically, what Mr. Gross is saying is that because I'm no longer a criminal (having "paid" my debt to society what with incarceration, and all), I should no longer be held to pay my fines and fees (and, subsequently, receive back all that I have paid into).  That would be a pretty slick trick, if it worked.

Up to this point, I'm rooting for the system.  Mr. Gross did the crime, he should do the time (and pay for his crime).  Yeah, I was rooting for the "justice" system up and until I got to the last paragraph of the decision which read:
"Unlike restitution fines, direct victim restitution is imposed to protect public safety and welfare, not to punish the defendant, and thus...the obligation to make restitution to the victims does not qualify as a penalty or disability from which a defendant is relieved..."
Basically, the spin the California Appellate Court said was that even though you did your time, the fund has nothing to do with punishment or your sentence - it's to protect the public.  Wait, what?!  Of course, it's to punish someone (it's supposed to punish the defendant so that they think twice before committing the crime again you #%!@#%@#%!  

Instead of just saying something like restitution goes hand-in-hand with the underlying conviction and be done with it, the court chose to obfuscate the issue and hand in a Roberts-esque decision.  Dang but obfuscated decisions like this only open the door to future bonehead litigation (which, I suspect, is a goal of courts anyway since a portion of all filing fees go to the judges retirement fund).