Can’t we all just get along?

Christine Young, you like walking your dogs in the park.

Vicky Tisdial, your gig is feeding the squirrels.

Whatever other differences you may have, did it really have to end like this, with clouds of mace, slashing dog leashes and civil protection orders?

Oh no you didn’t!

Meadowlark Park

Christine and Vicky

These names don’t sound like the ingredients for a vicious territorial squabble.

But life deals strange hands.

Vicky lives in an apartment a stone’s throw from Meadowlark Park in Carmel, Indiana.

One of Vicky’s little pleasures in life is feeding the park’s squirrels, ducks and other critters. She enjoys scattering white bread along the park’s paths for her wildlife pals. Harmless stuff, or so it would seem.

Christine lives on the opposite side of the park and uses the normally peaceful open space to walk her dogs.

Christine objected to the fact that she often finds a section of path covered with Vicky’s white bread.

Now, I sorta feel Christine’s pain. My dog Hedy scarfs up anything from the ground that looks even slightly edible. It can be pretty disgusting, both at the time and later in the day. I’ll skip the details.

As a veteran dog walker, I’ve become used to spotting and avoiding those hazards, so it’s hard to understand why Vicky’s white bread just stuck in Christine’s craw.

But it evidently ate at her. And Christine being Christine just couldn’t view the bread scattered in Meadowlark Park as one of life’s little annoyances that you just live with.

Nope, in February 2009, while walking her dogs in the park, Christine saw Vicky and noticed “there was bread all over the path.” So Christine complained to Vicky to “at least leave us some room.”

That was Mistake Number One.

Apparently Vicky has a short fuse and she didn’t appreciate Christine’s request, not at all.

In response, Vicky allegedly pulled out a can of mace and ran toward Christine, threatening to spray her.

As Christine and her dogs beat a hasty retreat, Vicky screeched, “You better run!”

That ended the first confrontation between Vicky and Christine, but a full-blown battle was not far off.

On May 20, 2009, Christine was walking her dogs in the park when she saw there was bread all over the path again.

Christine spotted Vicky about a football field away and, figuring that was a safe distance, yelled at Vicky to stop throwing bread on the pathways.

Here we have Mistake Number Two.

You see, not only does Vicky have a short fuse, but she also apparently has Bo Jackson-like speed.

Pulling out her trusty can of mace, Vicky was quickly upon Christine, spraying away.

Christine got her licks in, too, swatting away at Vicky with a dog leash, but Christine soon realized she was overmatched and needed reinforcements.

Pulling out her cell phone, Christine called the police.

The cavalry arrived as it always does – just in the nick of time.

Before any serious damage had been done, police separated the two women and the Battle of Meadowlark Park was over.

Well, not really. Christine shifted the fight to a venue all lawyers love – the courts.

Protect me!

Christine figured she needed a civil protection order slapped on Vicky if she was ever going to be able to enjoy Meadowlark Park again. 

A sympathetic state judge granted Christine relief under the Indiana Civil Protection Order Act.

Judge Gail Bardach of the Hamilton Superior Court ordered Vicky to stay out of Meadowlark Park, and also prohibited her from stalking, calling, harassing, annoying, telephoning or otherwise communicating with Christine. 

Vicky was heart-broken over the fact that she was banned from her beloved Meadowlark Park. And, given her feistiness, you can also imagine that Vicky just couldn’t stomach Christine being one up on her.

No, Vicky wouldn’t stand for it and she appealed the protection order against her pro se.

Now, proceeding without a lawyer you might conclude that Vicky didn’t stand much of a chance.

But Vicky had one big factor in her favor: Christine’s case just didn’t fit neatly under the Indiana Civil Protection Order Act.

You see, the statute is designed to protect the victims of domestic violence and stalking.

Last week, the Indiana Court of Appeals perceived this problem right off the bat and struck down Christine’s civil protection order.

The court explained that the statute “authorizes issuance of an order for protection only where a petitioner shows violence by a family or household member, stalking, or a sex offense has occurred. [Christine's] petition for an order for protection alleged she was a victim of stalking, and the trial court’s original ex parte order, reaffirmed following a hearing, so found. However, our review of the record shows there is no evidence [Vicky] committed stalking against [Christine], nor were the parties family or household members.”

While Christine had satisfied Judge Baird that she was the victim of stalking, that argument didn’t fly in the court of appeals.

The court observed that “stalking requires some evidence that the actor is the one looking for the victim. Here, by contrast, there is no evidence [Vicky] came looking for [Christine]. To the contrary, their encounters in the Park resulted from the fact both women walked in the Park on a daily or near-daily basis, and [Christine] verbally initiated each encounter.” (Tisdial v. Young)

Christine might not be totally out in the cold because the court suggested that she might be entitled to some other form of injunctive relief.

But with all due respect to the fine judges on the Indiana Court of Appeals, this might be one of those rare cases where it’s best for the court to hammer that square peg into the round hole.

Okay, Christine’s case doesn’t fit under the civil protection statute.

But in the interest of peace, it’s probably not a good idea to embolden Vicky by giving her a win in the courts by overturning Christine’s protective order. The last thing you want is Vicky upping the ante and strapping a Taser on her hip to complement her can of mace.

And the guess in this corner is that Christine isn’t the type who’s going to take this defeat lying down. So we can only hope and pray that there isn’t a resumption of hostilities at Meadowlark Park. 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Here’s a tax argument that makes some sense: If you make your living as a professional gambler, shouldn’t you be able to deduct your losses as a business expense?

The U.S. Tax Court typically swats such taxpayer claims down like flies.

But perhaps in its most definitive treatment of the issue to date, even the court had to admit that there is some logic to allowing the deduction.

Jackpot winner

Helen Orr has had a rough time of it.

In 1999, she was forced to take early retirement from her job as a railroad worker due to permanent disability. Her husband, Hoyt, is disabled and unable to work.

And after losing her mom and two brothers within a short span of time ten years ago, Helen admits that she has to deal with depression. That condition “is associated with diminished mental capacity to address even moderately complex responsibilities.”

Fortune smiled on Helen once, though. She won a $1.2 million jackpot while gambling at a casino in 2003.

But that lucky break inspired Helen to make a terrible decision and make gambling her business instead of her casual past time.

According to Helen, despite having a pot of gold she felt that she needed to get a job. But no one would hire her.

After consulting with three other gamblers who claimed they made a living through gambling, Helen decided to take up gambling as a business.

For tax purposes, a “professional gambler” is one who gambles as a “trade or business.” To be engaged in the activity as a business, the gambler “must be engaged in that activity (1) with regularity and continuity and (2) primarily for the purpose of profit.”

However, there need not actually be a profit or even a reasonable expectation of profit.

Now, life’s ledger informs us that the relative few who actually succeed at gambling are outnumbered by the hundreds of thousands of those whose lives are ruined by that endeavor.

And given Helen’s mental afflictions, it comes as no surprise to learn that her bid to turn pro ended in disaster.

But she tried.

She first took a stab at blackjack and poker – games which a skilled player has a reasonable chance of making a profit over time – but lost money.

Then Helen made the unfortunate decision of turning to games which traditionally favor the casino: craps and slots.

By the end of 2004, Helen had lost approximately $200,000.

Even though Helen now realizes that her attempt to become a professional gambler “was not a smart decision,” that didn’t stop her from attempting to deduct her gambling losses as a business expense when she and her husband filed their 2004 taxes.

In fact, Helen and her husband reduced their taxable income to zero by deducting her entire net loss of $215,488 from the gambling business against all of their other income for the year.

The IRS says no

Naturally, the IRS had a problem with the gambling loss deduction.

Not that there isn’t some logic to Helen’s argument. After all, she saw herself as a professional gambler. Therefore, her gambling losses should offset her other income in the same manner as most other business losses would.

Surprisingly, the U.S. Tax Court did not dismiss this argument out of hand.

On Monday the court issued an opinion in which it extensively analyzed the treatment of gambling losses under the Tax Code, although in the end it agreed with the IRS and disallowed Helen’s deduction.

Acknowledging that Helen qualified as a “professional gambler” for the 2004 tax year, the court came to grips with the government’s main contention that her gambling loss deduction was precluded by §165(d) of the Tax Code.

Section 165(d) provides that “[l]osses from wagering transactions shall be allowed only to the extent of the gains from such transactions.” The court in a 1994 decision read the statute as denying professional gamblers deductions for their net gambling losses.

Helen is a former tax preparer. So she’s no slouch when it comes to arguing tax points.

And Helen thought she had an answer to the IRS.

According to Helen, §165(d) does not limit the scope of business deductions authorized under §162 when gambling is pursued as a business.

Section 162(a) provides that “There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.”

Helen’s logic seems plausible on its face and it forced the Tax Court to embark on a historical examination of the business loss deduction under §162 and the treatment of wagering losses under §165(d).

The upshot of this look at the legislative history was the court’s conclusion that the “the designation of section 165(d) as a subsection of a section addressing only a particular kind of deduction (the deduction for certain ‘losses’) does not in itself prevent section 165(d) from applying to other kinds of deductions.”

To this Helen answered that §165(d) should not be applied to her gambling losses because no meaningful distinction can be drawn between her gambling activity and other business activities whose net losses are clearly deductible.

Not so, said the court.

“Even if it is difficult to define the outer reaches of the term ‘gambling,’ it is undisputed that what [Helen] did was gambling. To hold that playing a slot machine is not gambling would be an absurd interpretation of the word ‘wagering’ in section 165(d). Furthermore, such a holding would be tantamount to saying that there is no activity that qualifies as gambling, which would render section 165(d) surplus language,” the court said.  (Orr v. Commissioner)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

When you’re on the verge of settling a client’s claim, the last thing you need is any new development that might upset the apple cart. 

The death of the client is one event that should stop settlement discussions cold since it extinguishes the attorney-client relationship. 

But one Minnesota attorney, hoping to consummate a $19,000 consumer settlement, mistakenly figured he could be coy about his client kicking the bucket. 

That miscalculation has resulted in his indefinite suspension from the practice of law.

Isn’t it ironic?

Thomas Lyons, Jr. was engaged in the practice of law at a law firm known as the Consumer Justice Center, P.A., in Vadnais Heights, Minnesota.

In 2006, Lyons was retained by a Montana man who, ironically enough, had been erroneously reported to be dead by credit reporting agency Trans Union.

After arranging for Montana attorney, Sean Frampton, to serve as local counsel, Lyons filed a complaint against Trans Union under the Fair Credit Reporting Act in Montana federal court.

In September 2007, Lyons and counsel for Trans Union engaged in a settlement conference, but no settlement was reached.

In early October the client was hospitalized and on October 7, Frampton sent Lyons an email that said the client “is ill and in critical condition. Please keep him in your prayers.”

Prayers didn’t help and on October 9 Frampton emailed Lyons to inform him that the client was being pulled off life support and that he wasn’t “going to make it.”

Frampton also told Lyons in the email that the client’s wife had directed them to go ahead and settle the lawsuit.

Spurred to action, Lyons emailed Trans Union to clarify settlement positions, but time had run out: the client died later in the day on October 9.

Without knowing that Lyons’ client had died, Trans Union offered to settle the claim for $19,000. Lyons accepted the offer by email.

Of course, with the client unavailable to sign off on the settlement, Lyons proceeded engage in a series of machinations to allow the client’s wife to execute the settlement under a power of attorney.

Trans Union cooperated in this effort – all the time being unaware that the client had died.

Things came to a head in January 2008.

In a January 7 e-mail, Lyons stated that he was “[s]till working on [the client] who was hospitalized and I think the release is being signed by his wife or power of attorney.”

On January 14, 2008, the signed settlement agreement was returned to Trans Union. The problem was that the agreement was signed by the client’s wife as personal representative of the estate, rather than under a power of attorney.

So Trans Union knew that something was amiss.

Trans Union emailed Lyons asking if the client had passed away. Lyons responded in a January 31 e-mail, “Yes – HOW IRONIC.”

Trans Union apparently didn’t appreciate the irony and immediately sought to pinpoint exactly when Lyons first learned that his client had died.

Lyons tried to tap dance around the issue, claiming that he didn’t learn about his client’s death until after Trans Union had agreed to settle the case, but it was pretty clear from evidence provided by Frampton that Lyons knew about the death shortly after it occurred.

Lyons continues to maintain that he never engaged in intentional misrepresentation and at most he’s the victim of his own faulty memory.

But that wasn’t going to wash.

Trans Union immediately backed out of the settlement.

Frampton sued to enforce the deal, but Trans Union counterclaimed, adding Lyons and Frampton as parties. That lawsuit was resolved when Lyons agreed to pay $7,500 to the client’s wife.

And that was only the beginning of Lyons’ troubles because Trans Union filed a complaint with the state office of professional responsibility.

Duty to disclose client’s death

Minnesota like other states prohibits lawyers from “knowingly” making “a false statement of material fact” to a third person in the course of representing a client.

How this rule as well as the prohibition on lawyers engaging in dishonesty, fraud, deceit, or misrepresentation applies in the context of settlement negotiations is somewhat murky.

What lawyer feels obligated to show his entire hand?

So a lawyer’s duty to disclose in the course of settlement negotiations is generally deemed to be somewhat restricted.

One exception to the rule has been generally recognized. The ABA Standing Committee on Ethics and Professional Responsibility issued an opinion in 1995 which imposes an affirmative obligation to tell opposing counsel that a client died during settlement negotiations.

The ABA opinion states that, “When a lawyer’s client dies in the midst of the settlement negotiations of a pending lawsuit in which the client was the claimant, the lawyer has a duty to inform opposing counsel and the Court in the lawyer’s first communications with either after the lawyer has learned of the fact.”

The obligation isn’t derived from some broader duty to disclose, however.

Instead, the obligation stems from the fact that death terminates the lawyer-client relationship.

The Minnesota Supreme Court earlier this month formally recognized this obligation when it subjected Lyons to an indefinite suspension for his dealings in the Trans Union case.

It also didn’t help that a state disciplinary panel concluded that Lyons wasn’t as cooperative and forthcoming and he should have been in it investigation, or the fact that Lyons had a “substantial” disciplinary history.

The court said that “Lyons’ misconduct is serious. Lyons made false and misleading statements to the Director [of the Office of Lawyers Professional Responsibility] during the disciplinary investigation when he asserted that he did not learn of the client’s death until sometime in early November, after the settlement with Trans Union had been negotiated. In addition, Lyons gave false and misleading testimony on the samesubject at the referee hearing. …

“Finally, Lyons’ false and misleading statements to opposing counsel about whether he knew of his client’s death before the parties reached a settlement concerned a material fact. When ‘a lawyer demonstrates a lack If that truthfulness and candor that the courts have a right to expect of their officers,’ we ‘do not hesitate to impose severe discipline.’” (In re Lyons)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

When does the statute of limitations begin to run when medical malpractice causes the patient to lapse into a coma from which he never recovers?

Defense attorneys point to the date of injury.

Of course, plaintiffs’ lawyers counter that the date of the patient’s death is the earliest possible trigger for the statute of limitations.

While the question seems fairly simple, it should come as no surprise that even judges have a hard time agreeing on an answer.

Diabetic coma

On March 31, 2004, Curley Martin was admitted as a patient of Dr. Sandip Naik to Specialty Hospital of Mid-America (SHMA) in Kansas.

According to Macie Martin, Curley’s wife, hospital staff had difficulty with equipment that provided nutrition and medication to Curley. As a result, by the evening of April 7 Curley’s blood glucose had dropped to a critically low level.

Macie claims that hospital staff negligently administered insulin and that by the next morning Curley had lapsed into a diabetic coma.

Curley was transferred to Shawnee 6 Mission Medical Center later that morning, but the transfer was allegedly delayed due to Dr. Naik’s negligence. Curley’s condition did not improve and he suffered irreversible brain damage.

Macie asserts that a Shawnee 6 doctor who treated Curley blamed SHMA staff for allowing Curley to go into a diabetic coma and essentially killing him.

Curley eventually passed away on October 25, 2004.

Lawsuit time-barred

On October 25, 2006, 2 years to the day following Curley’s death, Macie’s filed a wrongful death suit against Dr. Naik and SHMA on behalf of herself and Curley’s other heirs.

She also filed a survival action as the personal representative of Curley’s estate.

Dr. Naik and SHMA convinced the trial judge that Macie’s claims were barred by the applicable two-year statute of limitations under Kansas law.

The trial judge decided that Macie’s claims for medical negligence in the survival action and the wrongful death claim accrued April 8, 2004, when Curley lapsed into an irreversible coma.

Dr. Naik and SHMA argued that this result was required because Kansas law provides that claims for medical malpractice accrue “at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party….”

The fact that Curley was in a coma for nearly seven months before his death was of no consequence, the defendants argued, because Macie was aware of the essential facts of her case at the time of their alleged acts of negligence.

Reversal of fortune

Last week, the Kansas Court of Appeals found fault with this reasoning.

With respect to the survival claim, the court said that what was apparent to Macie on April 8, 2004, was immaterial.

This was so, the court explained, because Macie “is not the injured party in this survival action, Curley is, and Curley’s injury was not apparent to him because he was in a coma from which he never recovered.

“Upon Curley’s death, his medical negligence claim became an asset of his estate. At that time the fact of injury was reasonably apparent to the estate, the successor-injured party, thereby causing the survival action for medical malpractice to accrue and the running of the period of limitation to commence. ….”

Accordingly, the court held that commencing the survival action exactly two years after Curley’s death rendered the action timely.

The court of appeals likewise decided that Macie’s wrongful death claim came into being at the time of Curley’s death.

In reversing the summary judgment for the defendants, the court looked no further than the plain language of the state’s wrongful death statute. The law provides that an action for wrongful death may be brought by “any one of the heirs at law of the deceased who has sustained a loss by reason of the death.”

The court explained that in this case Curley’s heirs at law could only be determined at the time of his death.

“The person entitled to bring a wrongful death action is not a mere ‘heir apparent’ who may or may not ultimately be determined to be an heir at law,” the court said.

“That determination must await the occurrence of the wrongful death. We find no support for the notion that a cause of action may accrue and start the running of the statute of limitations clock when there is no person who can be determined to have the right to bring suit on the claim.” (Martin v. Naik)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

You’d think that a lawyer would be laughed out of court if he claimed that his client was the unfortunate victim of a meteor strike. 

That such a case would trigger an all-out war between a state judge and county prosecutor is right out of science fiction. 

But you gotta hand it to Richard Tracer and his attorney. They nearly pulled it off. 

Tracer was involved in a crash with another vehicle in Jefferson County, Washington, on May 25, 2007. 

As if that wasn’t bad enough, Tracer allegedly had a .13 blood alcohol level at the time of the accident. 

It all added up to a felony charge of vehicular assault. 

Tracer’s lawyer submitted, shall we say, a novel explanation of events in the hope of getting his client a reduced charge. 

According to Tracer’s attorney, the crash was not the result of Tracer driving drunk. Nope. The accident was caused by a meteor striking Tracer’s car.

What’s more, Tracer had an accident reconstructionist ready to prove his case.

Now, there’s a criminal defense blog that insists that a meteor did in fact strike Tracer’s car.

So that might explain why Tracer and his lawyer weren’t tossed in jail just on principle.

And that might also explain why Jefferson County Prosecutor Juelanne Dalzell took the case so seriously. That and the fact that Tracer’s mom works for the Jefferson County Sheriff’s office.

Seeing the conflict, Dalzell appointed a special prosecutor in the case, Andrea Vingo. The only problem was that Vingo failed to show up at Tracer’s plea hearing.

This put Judge Craddock Verser in a bind because Tracer’s attorney said he had a deal on the table for Tracer to plead guilty to a reduced DUI count in order to avoid the vehicular assault charge. Tracer also claimed that he needed the matter cleared up ASAP because he had a job offer on the line.

Wanting to move things along, Judge Verser took the extraordinary step of appointing Noah  Harrison – a criminal defense attorney who happened to be in the courtroom at the time – as a special deputy prosecuting attorney to represent the state in Tracer’s case.

At a hearing later that afternoon, Harrison made the appropriate motions to allow Tracer to enter a guilty plea to the reduced DUI charge.

Judge Verser then proceeded to give Tracer a relatively light sentence of five days in jail plus a suspended sentence of 360 days contingent on his paying a nominal $314 in restitution to law enforcement.

Wrapping the proceeding up, Verser apparently accepted the story about the meteor, telling Tracer, “Well good luck to you. … I’m glad it worked out this way.  I’m glad this wasn’t your fault but it certainly could have been.” 

Dalzell, the county prosecutor, was stunned at the turn of events.

She filed an emergency motion to set aside Tracer’s guilty plea.

Last month, the Washington Court of Appeals agreed that Judge Verser had overstepped his authority in appointing a special prosecutor to conclude the plea agreement with Tracer.

“By appointing and then directing the special deputy prosecutor to perform his duties in a manner predetermined by the court, Judge Verser exceeded his authority and effectively moved to amend the information sua sponte,” the court explained.

“It is axiomatic in law that one may not do indirectly what he may not do directly. The trial court lacked the authority to amend the information on its own motion and was not authorized to direct the special prosecutor to do so. The motion to amend the information was invalid and Tracer remains charged with vehicular assault.” (Washington v. Tracer)

The hope in this corner is that this case goes to trial rather than having it resolved with a revised plea agreement.

What could be more delicious than testing Tracer’s evidence that a meteor actually triggered his accident?

Now that would be a one in a million trial. 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Okay boys, let’s play nice.

You, Stanley Schnapp, go back to minding the estate of dearly departed Isi Fischzang.

And you, Robert Steinberg, let go of those ill feelings you have for Stanley after it was decided that the estate would no longer require your services.

The upshot of this New York probate melodrama is that you can’t hold a colleague liable when the client decides to fire you.

Here’s the scoop.

Leon Borstein is the executor of the Estate of Fischzang.

In 2007, he retained Schnapp and Steinberg – both New York lawyers – “as my attorneys with respect to all legal proceedings and asset administration concerning the wills, assets and estate of the late Isi Fischzang.”

The September 2007 contract of employment for the attorneys provided that Steinberg would serve as “trial counsel for all litigation issues,” while Schnapp was designated as “the general counsel for the fiduciary and estate, with respect to all litigation proceedings concerning the wills, assets and estate of the late Isi Fischzang.”

What promised to be a lucrative engagement for all involved quickly turned sour.

Steinberg found himself on the outside looking in when a few months later Borstein decided to let him go, allegedly because of the quality of Steinberg’s work.

Steinberg couldn’t sue Borstein because the executor had the power to terminate the lawyer for any reason.

Besides, Steinberg saw Schnapp as the true villain in the whole affair.

According to Steinberg, Schnapp was the one who really fired him, apparently in some murky exercise of his authority as general counsel for the estate.

And Schnapp had done him in not because Steinberg was doing a bad job, but because Steinberg wanted to shift the blame from himself for certain delays in the probate of the estate.

At least that’s what Steinberg alleged when he sued Schnapp in March 2008, asserting claims of tortious interference and quantum meruit.

In the quantum meruit claim, Steinberg asserted that he had not been paid for work he performed for the estate at the behest of Schnapp.

On Tuesday, the New York Appellate Division decided that Steinberg lawsuit had no chance of success and affirmed its dismissal by a lower state court.

Of course, the big problem for Steinberg on his quantum meruit claim, and the one that had the court absolutely baffled, was why estate executor Borstein was not named as a defendant.

The court observed that “Steinberg’s quantum meruit claim against Schnapp is particularly perplexing, since the record not only contains the various documents prepared by Borstein memorializing his retention of Steinberg as ‘trial counsel for all litigation issues,’ but Steinberg’s own admission that he had been retained by the estate. Further, there is nothing in the record to support even an intimation that an attorney-client relationship existed between himself and Schnapp.”

The court also had a big problem with Steinberg’s claim that Schnapp had tortiously interfered with his contract with the estate.

Because the economic relationship at issue was one between attorney and client, Borstein had the right to terminate that relationship at any time with or without cause.

Steinberg was thus in the nearly untenable position of trying to obtain damages for the destruction of a non-binding relationship.

The court observed that Steinberg’s only hope in that context was to prove that Schnapp’s conduct constituted a crime or an independent tort.

This Steinberg could not do, the court said, noting that it would not suffice to merely show that Schnapps’ alleged bad-mouthing was the result of “self-interest or economic motivations.”

The court concluded that, “[a]t best, Steinberg is suggesting that Schnapp made an inaccurate statement about the quality of Steinberg’s work, which statement led Borstein to terminate the attorney relationship, a relationship that is terminable at will, in any event. Such statements would be neither tortious nor criminal.” (Steinberg v. Schnapp)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

The talkative employee can be a gold mine for plaintiffs’ attorneys.

The offhand comment by a defendant’s employee just might be the key piece of evidence needed to get a personal injury or employment case before a jury.

Take the case of Keith Brunsting and the resort employee who saw the skier lose control and crash headfirst into a tree.

Brunsting and friend Trace Benson were skiing the Alpha run at Lutsen Mountains on the afternoon of February 26, 2004. Lutsen Mountains is a ski resort 90 miles northeast of Duluth, Minnesota.

Sherry Christiansen — an off-duty Lutsen employee — was on the Timberwolf chairlift overlooking the Alpha run. She saw Brunsting ski down the slope, lose control and crash headfirst into a tree near the edge of the run.

Brunsting suffered a severe brain injury in the fall that left him permanently disabled. He sued Lutsen Mountains for negligent maintenance of the ski slope, alleging that his fall was caused by an exposed tree stump near the scene of the accident.

The problem for Brunsting was that his injuries left him with no memory of the accident, so he couldn’t testify that he in fact struck the stump before his fall. And Benson, Brunsting’s friend, never saw the accident.

That’s where Sherry Christiansen comes in.

According to Benson, Christiansen arrived at the scene to lend a hand about four or five minutes after Brunsting’s fall.

Benson claimed that at that point Christiansen told him that she “saw [Brunsting] stumble on a stump, then fall into a tree, hitting the tree with his head.”

So Brunsting had his evidence linking his fall to the tree stump. Or did he?

A U.S. district judge ruled Christiansen’s statement inadmissible, concluding that it did not qualify as an “excited utterance” under Federal Rule of Evidence 803(2).

The rule excepts from the hearsay rule any “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

The judge reasoned that the hearsay exception did not apply because Christiansen made the statement four to five minutes after witnessing Brunsting’s fall and in response to an inquiry by Benson rather than spontaneously.

With Christiansen’s statement out of the mix, the judge granted Lutsen’s motion for summary judgment, finding that Brunsting couldn’t show that the tree stump caused his fall.

Yesterday, the 8th Circuit breathed new life into Brunsting’s lawsuit, deciding that Christiansen’s statement was an excited utterance.

The 8th Circuit first found that the district judge was mistaken in his analysis of whether Christiansen’s statement was made in reaction to a truly startling event.

The court found that the district judge improperly limited the “event” under Rule 803(2) to the moment that Christiansen witnessed the accident from her position on the chair lift.

“It was the whole of the event that is relevant for purposes of the Rule 803(2) analysis: witnessing a near-fatal traumatic accident from the chairlift and immediately rushing to the scene where Brunsting was unconscious, bleeding from the mouth, turning blue and believed to be near death, as others tried to stabilize him until medical assistance arrived. It was a chaotic scene and Christiansen realized the gravity of the accident – that she might indeed be witnessing a man’s death,” the 8th Circuit said.

The court further found that the district judge should have given more weight to Christiansen’s status as an employee of Lutsen.

“That an employee of Lutsen would spontaneously make such an inculpatory statement buttresses the conclusion that it was not the product of reflection and deliberation,” the court said.

Finally, the 8th Circuit found compelling the fact that Christiansen backed away from statements on the day of the accident that Brunsting had struck the stump — once it became clear her employer would be the target of a lawsuit.

“[T]he inconsistencies between the statements Christiansen made at the scene and in her first written statement given the day of the accident; and the statements she provided two months and four years later, respectively, under the tutelage of the Lutsen people and counsel (necessarily the product of greater reflection and deliberation), enhance the veracity and credibility of the statements she made the day of the accident. …

“At the very least, this suspect change of tune must give us pause in our consideration. The consistency of the separate statements made the day of the accident gives credence to the fact that they were given without reflection or deliberation under the stress and excitement of the event,” court concluded. (Brunsting v. Lutsen Mountains)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Radio beats television hands down. The radio engages the mind and heart in ways that television simply can’t match. 

Newstalk, sportstalk, Top 40, classic rock, golden oldies — it’s all good. 

Well, not quite. 

There are the shock jocks. 

Generally, they stalk the FM airwaves, appealing to the lowest of common denominators. 

With the way shock jocks spew offensive material, you’d think lawyers would have a field day. 

But the coarseness of modern culture has made it next to impossible to hold shock jocks accountable for their words — even when it comes to false claims about a person’s sexual orientation. 

A freelance photographer recently learned that hard lesson when he became the object of scorn of Craig Carton and Ray Rossi, who hosted a show for WKXW 101.5 FM in Trenton, New Jersey. 

In March 2006, New Jersey Monthly magazine published a feature naming Carton and Rossi as the best shock jocks in the state. 

The magazine hired freelancer Peter Murphy to take a photograph of the shock jocks for the article. The photograph showed Carton and Rossi appearing semi-nude while holding a WKXW radio station logo across their mid sections. 

The image became an instant hit with the shock jocks’ fans. The radio station posted Murphy’s photograph on its website and soon fans were altering the image to poke fun at Carton and Rossi. 

For example, one altered photo had the two shock jocks holding a sign reading “Will Work For Ratings.” 

Thinking it had stumbled upon a great publicity scheme, WKXW on its website invited more fans to send photo shopped alterations of Murphy’s photograph. 

The only problem was that no one at the station thought to contact Murphy to get permission to use the image. 

Sure enough, Murphy had his attorney get in touch with WKXW about potential copyright violations. 

And when Carton and Rossi found out that they were being accused of violating Murphy’s copyright, they responded in typical shock jock fashion. 

According to Murphy, during one show Carton and Rossi embarked on a tirade impugning the photographer’s personal integrity. To top things off, Murphy claimed that the shock jocks implied that he was a homosexual. 

So Murphy was off to federal court to sue for defamation. 

But Murphy has hit a brick wall. 

Two weeks ago, U.S. District Judge Joel A. Pisano ruled that the assertion that someone is homosexual is not defamatory under New Jersey law. 

In reaching this conclusion, the judge cited the New Jersey Supreme Court’s decision in Lewis v. Harris that equal protection prohibits the denial of rights and benefits to committed same-sex couples that are given to their heterosexual counterparts. 

“Given the decision in Lewis and the recognized evolution of the societal landscape, it appears unlikely that the New Jersey Supreme Court would legitimize discrimination against gays and lesbians by concluding that referring to someone as homosexual ‘tends so to harm the reputation of that person as to lower him in the estimation of the community as to deter third person from associating or dealing with him,’” the judge wrote.  (Murphy v. Millennium Radio Group) 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

It doesn’t get much more basic than this: Have you ever been a party to a lawsuit? 

A prospective juror’s answer to that question could in large measure determine whether she will be selected to hear a case. 

A recent decision by the Missouri Supreme Court provides guidance on what to do when you don’t learn until after a verdict is rendered that a juror intentionally failed to disclose her prior litigation history. 

While you might think getting a new trial would be a slam dunk when a juror fails to reveal a litigious past, be forewarned that the outcome in your case may well depend on the clarity of your questions during voir dire, as well as your due diligence in discovering and documenting the obfuscation.

Medical malpractice lawsuit

Phil Johnson sued Dr. J. Edward McCullough and Mid-America Gastro-Intestinal Consultants for medical malpractice in Missouri court. According to Johnson, he sustained permanent throat injuries as the result of negligent treatment provided by the defendants.

During voir dire, Johnson’s attorney asked about the prospective jurors’ prior involvement in litigation.

Specifically, Johnson’s lawyer asked, “Now not including family law, has anyone ever been a plaintiff or a defendant in a lawsuit before?”

Numerous members of the panel acknowledged past involvement in lawsuits, but venire member Mims did not respond to the question and eventually was chosen to sit on the jury.

After a six-day trial, the jury deliberated for 40 minutes and returned a defense verdict. Mims signed the verdict.

Now, we don’t know what raised the suspicions of Johnson’s attorney or why he waited until after trial, but the lawyer proceeded to investigate Mims’ civil litigation history using Missouri’s automated case record service.

And the attorney struck gold.

He discovered that Mims previously had been a defendant in multiple debt collection cases and in a personal injury case. At least three of the lawsuits against Mims had been filed within the previous two years.

It seemed to be a clear case of intentional nondisclosure by Mims, but there were a few issues that needed to be addressed before Johnson could get a new trial.

Clarity of question asked

The first issue was the awkwardly worded question asked by Johnson’s attorney during voir dire.

McCullough argued that the bit about “now not including family law” had rendered the question confusing and ambiguous.

The Missouri Supreme Court last month decided that the question was sufficiently clear to trigger a duty on the part of Mims to disclose her litigious past.

“The question remained a general question and was not rendered confusing or ambiguous by surrounding context,” the court explained. “Counsel’s question clearly indicated that he was not interested in disclosure of “family law” disputes.

“From the standpoint of a reasonable lay person, debt collection lawsuits and suits for personal injuries are not excluded by counsel’s general inquiry into prior litigation experiences. With the question so narrowed, counsel’s question unequivocally triggered Mims’ duty to disclose. However, Mims remained silent. Failure to answer a clear question is considered a nondisclosure.”

‘Intentional’ nondisclosure?

Johnson next had to show that Mims’ nondisclosure was intentional. Johnson had some problems in this area.

In the trial court, Johnson’s attorney failed to present direct evidence explaining why Mims failed to answer the question about her litigation history.

Instead, he simply relied on a printout from the state’s automated case service showing Mims’ litigation history to support the inference that the juror had acted with the requisite intent.

This plainly troubled the Missouri Supreme Court, but in the end it decided that Johnson had shown enough to justify the trial court’s granting of a new trial.

“Although the better practice here would have been for the party seeking a new trial to have deposed Mims, obtained an affidavit, or had her testify, under these facts there was no reasonable inability to understand the question, as several venire members provided relevant disclosures of prior litigation experience, and Mims’ litigation history was of such significance that forgetfulness is unreasonable, as her experiences were both numerous and recent.

“The trial court properly found that Mims’ nondisclosure was intentional. Because Mims’ nondisclosure was intentional, bias and prejudice are presumed,” the court said.

Timeliness

The final problem for Johnson in getting a new trial was the question of whether his attorney had acted in a timely manner in uncovering juror misconduct.

Dr. McCullough argued that Johnson’s attorney had plenty of time to discover Mims’ intentional nondisclosure before a verdict was rendered. After all, the verdict came after a six-day trial.

The Missouri Supreme Court decided that Johnson had not waived the issue of Mims’ nondisclosure by failing to act in a timelier manner, explaining that “there was no evidence that it was practicable for the attorneys in this case to have investigated the litigation history of all of the selected jurors prior to the jury being empanelled.”

But the court made it clear that in future cases lawyers in the state would have a greater responsibility in policing the jury pool.

“[I]in light of advances in technology allowing greater access to information that can inform a trial court about the past litigation history of venire members, it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention at an earlier stage.

“Litigants should not be allowed to wait until a verdict has been rendered to perform a … search for jurors’ prior litigation history when, in many instances, the search also could have been done in the final stages of jury selection or after the jury was selected but prior to the jury being empanelled. Litigants should endeavor to prevent retrials by completing an early investigation,” the court said.

It said that from now on “to preserve the issue of a juror’s nondisclosure, a party must use reasonable efforts to examine the litigation history … of those jurors selected but not empanelled and present to the trial court any relevant information prior to trial.” (Johnson v. McCullough)

Moreover, the court promised that it would be working on promulgating new rules to provide specific direction on this issue.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Ah, what a fine mess. You’re a government employee who gets demoted for having an extramarital affair with a subordinate. 

Hey, here’s an idea. Maybe you can get your old job back by crying about your First Amendment rights? 

Yeah, like that was ever going to work. 

And just to save you a letter to Ann Landers, I wouldn’t even mention the First Amendment when it comes time to explain things to your wife.

Soap opera at the fire station 

MTV should do a reality show about the Palm Beach County Fire Rescue Department. There are some story lines there that beat anything on Jersey Shore. 

Take Randy Starling for an example. The Florida firefighter worked hard to become a captain in the department. 

So what did Starling do with his well-earned status? In May 2005, Starling arranged to have Carolyn Smith, another firefighter, transferred to his fire station as his subordinate. 

Bada bing, bada boom, Starling and Smith were soon getting it on. 

Starling thought it was all copacetic because he was separated from his wife and well on his way to a divorce. Soon enough he moved into Smith’s home to make the affair even more convenient. 

Unfortunately for Starling, his boss had problems with the relationship, particularly since it appeared to be common knowledge to most everyone in the fire department. 

Ken Fisher was Starling’s direct supervisor. In a pre-disciplinary action, Fisher issued a warning letter asserting that the extra-marital relationship with Smith was distracting Starling from his duties as captain. 

Rather than taking the hint, Starling went on the offensive. 

Starling complained that Fisher had created a “hostile environment” for himself and Smith. 

According to Starling, Fisher had once tried to get Smith involved in a threesome, and had become accustomed to using Smith’s home as the locale for his own trysts. 

Starling claimed that Fisher was peeved because he could no longer use Smith’s home for his affairs after Starling moved in.  

Starling’s counteroffensive evidently didn’t go over well and he soon found himself demoted to firefighter.

Intimate association

In his §1983 lawsuit against Palm Beach County, Starling argued that his demotion violated his First Amendment right to intimate association. 

But the unfaithful husband wasn’t going to find any sympathy for his plight in federal court. 

A district judge granted the county’s motion for summary judgment and yesterday the 11th Circuit affirmed that decision. 

The court of appeals assumed for the sake of argument that the First Amendment protects extramarital association as a fundamental right. 

However, it concluded that there could be no constitutional violation here because the county’s interest in discouraging extramarital association between supervisors and subordinates is so critical to the effective functioning of the fire department that it outweighed Starling’s interest in his affair with Smith. 

The court took note of the fact that Starling’s battalion worked 24-hour shifts that required him and his subordinates to sleep and work in close proximity. 

“Intimate, extramarital relationships between subordinates and supervisors in this environment can be particularly destructive to the chain of command by weakening trust and discipline and threatening harmonious interpersonal relationships. 

“The mere potential for this kind of disruption in the Fire Department would likely justify a burden on a fundamental right to intimate association,” the court said. 

It decided that there was ample evidence of favoritism to conclude that Starling’s relationship with Smith had damaged operational efficiency, so much so that the problem couldn’t simply be remedied by transferring Smith out of his battalion. 

“Starling’s relationship with Smith … had already damaged his battalion’s effectiveness, and there is no guarantee that her transfer would have ended these disruptions,” the court explained. “Thus, this argument does not alter our conclusion that the County’s interests in an efficient Fire Department outweighed Starling’s interest in intimately associating with Smith.” (Starling v. Palm Beach County)

- Pat Murphy

patrick.murphy@lawyersusaonline.com