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.

Monday, September 9, 2019

Might makes right, right?

Might makes right, right?
The other day as I was going going about doing my thing, I had the opportunity to witness an opposing viewpoint.  No one was duking it out - people were just calmly speaking their mind.  Specifically, they were talking about how twisted the Electoral College was and that it should be abolished.

The problem is, I don't think they understood what it was they were seeking.  Most people seem to think that the Electoral College is an actual place - where people go to college and vote on who gets to be President of the United States ("POTUS").  Sad, that.

There are primarily two schools of thought on how to elect a POTUS.  The Electoral College method (promulgated by our founding fathers) and the Popular Vote method (promulgated by every person/political faction who lost a POTUS election).  Let's take a look at both.

The Electoral College is a body of electors established by the United States Constitution (i.e. it's not a place in the physical sense). Pursuant to Article II, Section 1, Clause 2, the legislature of each state determines the manner by which its electors are chosen. Each state's number of electors is equal to the combined total of the state's membership in the Senate and House of Representatives.  Presently, there are are 100 senators and 435 representatives, respectively.

Basically, as I understand it, the Electoral College works to make things fair across the country allotting a proportional share of representatives for each state.  A majority of 270 electoral votes is required to elect the President.  A state’s entitled allotment of electors equals the number of members in its Congressional delegation: one for each member in the House of Representatives plus two for your Senators.  So, there are 538 Electoral representatives in all (435 + 100 = 538).

So, California has 53 representatives in the House and two in the Senate.  That gives California 55 Electoral representatives.  Wyoming, on the other hand, has 1 representative in the House and 2 in the senate giving Wyoming 3 Electoral representatives.  Three is not a very powerful number in the grand scheme of things, but when you add up all the small numbers, you can get some mighty powerful numbers when it counts.

For example, in the 2016 election, seventeen states that the Republican candidate carried had less than 10 Electoral College representatives,  Heck, the largest state that the Republican candidate won had only 38 representatives (compared with California's whopping 55).  

In fact, the smallest states held 97 Electoral College votes.  That's 18% of the total, people.  While everyone was eyeing Florida (29), Pennsylvania (20), Texas (38), and California (55), no one paid attention to the small states (to their detriment).  Yep, it's the little guys that'll get you in the end.

The Popular Vote method is a bit more straight forward.  Basically, whomever gets more votes wins.  Simple enough.  Might makes right, right?

But, let's put this in perspective.  Say the USA were divided between California and Delaware.  California, with a population of 39.56 million would ALWAYS beat out Delaware with its population of 967,171.  So, why would anyone in humble Delaware ever go out to vote if they knew they would always lose to mighty California?

Thing is, it is possible to win a popular vote by getting more people to vote for you in any particular state but you could lose if you didn't also carry the Electoral College representative vote.

Gage [CC BY-SA 4.0 (]Which, of course, brings us to the "surprising" results of the 2016 election (where the Republican candidate STOMPED all over the democrat candidate and the democrat party has yet to realize it lost the race).

The thing is, in the 2016 election, the democrat candidate won the popular vote by about 2.1%.  The Republican candidate won the Electoral College vote by a whopping 304 to 227.

Hence the loooooooong running debate by the unsuccessful candidate's party on whether to abolish the Electoral College in favor of the the Popular Vote method.  

And herein lies the problem.

See, the Electoral College is a creature created by the United States Constitution.  In order to get rid of it, there must be a two-thirds majority vote in both the House of Representatives AND the Senate or by a constitutional convention called for by two-thirds of the State legislatures.

Yeah, that's not gonna happen any time soon.  I mean just imagine getting two-thirds of the 50 state legislatures to agree on anything.  Dang but they can't even balance their respective budgets.  How in blazes are they going to agree on what method is best?

And, so the beat-down goes on.  To win, or not to win - THAT is the question.  More specifically, what are we the people willing to do to win our particular perspectives.  Keep a Constitution that has endured over 200 years of struggle and strife and is still a beacon to the world or start over, mid-stream, simply because our candidate didn't win.

Yeah, that's a tuffy.