Convict sentenced by "Keystone Cop" Judge loses habeas appeal at the 8th Circuit

Lawrence E. Lupien v. Harold W. Clarke Opinion U.S. Court of Appeals Case No. 04-1618 is a comedy of errors, turning a confusing sentence of 2 ten year consecutive terms into a federal case of the expost facto clause. the Federal Appeals court in St. Louis is not going to take up a lot of time parsing the possibly garbled words of a country judge handing out a sentence to a pot dealer. The Federal District Court Judge agreed that the expost facto clause required Lupien to receive a six year lower range sentence. The final result of the case after the 8th Cir. appeal will mean parole eligibility after ten years.

Techno-myths: cell phones for pyros

An unsuspecting customer at a self serve gas pump suffers grievous burns when the fuel pump explodes. He was using his cell phone at the time, you ve heard of this havent you? Certainly you have, self serve gas pumps paste the ubiquitous warning label at the pump: do not talk onyour cell phone will pumping gas. Trouble is cell phones cannot create enough static electricity to start a gas fire. In Anatomy of a techno-myth: The debate over the safety of mobile phones has little to do with science, Economist March 23, 2005, the Economist reports that even cell phone companies knew by the end of the last decade that cell phones could not cause enough spark to cause a fire. Trouble was at the same time, changes in automobile design and manufacturing caused automoibles to throw off more static electricity. Also the number of gas pump fires had at the same time increased dramatically. Conspiracy sites on the web put these coincidences together to create the "exploding cell phone myth." Curiously, cell phones are both increasingly "indispensable" also perceived as "vaguely dangerous." The Economist concluded "The safety of mobile phones would appear to be not so much the province of the hard science of physics, as of the soft science of sociology." Will the Products Liability "Torters" be retaining sociologists or engineers for their next liability cases?

Husband shorted on retirement fund in divorce settlement takes shot at his lawyers

Michael Maas sued his divorce attorney Cripes, then with Omaha's Sodor Daly law firm for malpractice. The divorce court had refused to award Michael part of his wife Patricia's Millard Public Schools retirement fund, and instead divided their whole marital estate by 59% for the wife and 41% to the husband. When Michael was unable to get a new trial on the retirement issue he sued for malpractice. The appeal opinion on the divorce was just 2 years ago Maas v. Maas, No. A-01-1391, 2003 WL 21646597 (Neb. App. July 15, 2003) (not designated for permanent publication), even though the opinion from Tuesday March 29 was an appeal from a summary judgment motion, thats pretty swift justice. The unpublished decision is Maas v. Sodoro, Daly(Not Designated for Permanent Publication)

Filed March 29, 2005. Nos. A-03-753, A-03-804. Appeal from the District Court for Douglas County: Thomas A. Otepka, Judge. Appeal in No. A-03-753 dismissed. Judgment in No. A-03-804 reversed, and cause remanded for further proceedings.

James D. Sherrets and Brian J. Mathey, of Sherrets & Boecker, L.L.C., for appellant. (Plaintiffs' boutique law firm handling many attorney malpractice actions)

Michael J. Mooney and Donald P. Dworak, of Gross & Welch, P.C., for appellees (leading Omaha defense firm; District Judge's former firm)

Interesting: both spouses were employees of the Millard School District but Patricia had 32 years service while Michael had only 9? Wonder what their age difference was if any? Or if Michael had a hard time holding down a steady job; after all if you are a school teacher isnt it in your better interest to stay put in one place so you do build up more retirement credit? The attorneys had estimated the wife's retirement fund at $100,000 while the husband's was estimated to be about $30,000. Micheal apparently thought his attorney had dropped the ball on persuading the court to order a QDRO split for Michael and in investigating how much the wife's fund was really worth with additional contingent State contributions. Malpractice defense counsel persuaded the trial court that if the client's attorney ARGUES for a QDRO, he/she does not have to value the pension assets. I think that was a stretch, and the court agreed, stating that while a pension valuation is not a QDRO's prerequisite, the attorney still needs to investigate the fund value. What really lost the Defendant law firm's summary judgment win was its failure to get its own expert affidavit supporting the attorneys work on the divorce case. All the Plaintiff had to do was offer an affidavit that could say anything in favor of finding malpractice. See Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999). The Plaintiff's affidavit from a legal malpractice expert at least from the appeal court opinion describing it seems kind of thin, but it was good enough to persuade the appeals court to reverse summary judgment. QuerY; doesnt Daubert apply to expert opinions? Does this plaintiff's affidavit meet that standard, or could any attorney's affidavit in a malpractice case? Aside: you would expect a lawyer who specializes in suing other attorneys for malpractice would be suitably paranoid about watching his own P's and Q's. the Court noted that the Plaintiff's attorney filed 2 appeals just to make sure he had one on file, because the law on tolling the notice of appeal time after a winning summary judgment motion are not entirely clear.

Major Revisions to Bankruptcy Code

Major Revisions to the Bankruptcy Code (Title 11, United States Code, et seq) are on their way. Actually these were revisions that would have gone through several years ago were it not for the Clinton scandals, Democrat-inserted poison pills, 9-11 and the wave of Enron type bankruptcies. Predictably there was much local hand-wringing about the expected effect of the legislation. The biggest impact of the legislation will be the tremendous increase in the complexity and paperwork for what currently are routine bankruptcies. Attorney arent necessarily averse to doing more paperwork, but they certainly will not like having to vouch for their clients paperwork to an extent the code and rules did not ask of them before, including requiring attorneys to attest that their debtor-clients will be able to make payments on reaffirmed debts. A good draft of the bankruptcy revisions incorporated into the current code is at the Davis Polk and Wardwell law firm website (caution this pdf document is over 300 pages!). Even though Bankruptcy reform is certain to pass, no one can say for sure how much of the bill the Trustees and creditors will seek to enforce.

Ameritas Agent in Virgina Gets "Hometowned"

Ask any lawyer in Lincoln or Omaha what it is like litigating a case outstate, lets say in certain counties (Lincoln, Madison.) The term "hometonwed" might come up. The opening paragraph of the case that hometowned Diane Mckinney in the Nebraska Supreme Court follows (Ameritas Invest. Corp. v. McKinney,269 Neb. 564 3-25-2005)

"Diana McKinney, a resident of Virginia, was sued in the district court for Lancaster County by a Nebraska financial services corporation for damages arising out of McKinney’s agency relationship with the corporation. The action was dismissed after McKinney challenged the court’s personal jurisdiction over her. The question presented in this appeal is whether the choice of forum clauses contained in McKinney’s agency contracts provide a prima facie showing that a Nebraska court may exercise personal jurisdiction over McKinney. Because we conclude they do, we reverse the judgment of the district court and remand the cause for further proceedings." "Ameritas then filed a complaint against McKinney in the district court, seeking $22,886.87 as indemnification for its settlement with (one of Mckinney's customers.) McKinney filed a motion to dismiss pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(2) (rev. 2002), asserting that the court lacked personal jurisdiction over her pursuant to the Nebraska long-arm statute, Neb. Rev. Stat. § 25-536 (Reissue 1995), and the Model Uniform Choice of Forum Act (Choice of Forum Act), Neb. Rev. Stat. § 25-413 et seq. (Reissue 1995) To defeat a motion to dismiss for lack of personal jurisdiction, the nonmoving party need only make a prima facie showing of personal jurisdiction until trial or until the court holds an evidentiary hearing. Epps v. Stewart Information Services Corp., 327 F.3d 642 (8th Cir. 2003) See, also, Northrup King v. Compania Productora Semillas,51 F.3d 1383 (8th Cir. 1995) The Court goes on to state the "Catch 22" of improper forum/no in personam jurisdiction cases: "If the lower court does not hold a hearing and instead relies on the pleadings and affidavits, then an appellate court must look at the facts in the light most favorable to the nonmoving party and resolve all factual conflicts in favor of that party." Surprise that was AMERITAS. Here Ameritas argues that the agents agreeing to the forum selection clause waives any right she might have had to a due process "minimum contacts" analysis. "Where such forum-selection provisions have been obtained through “freely negotiated” agreements and are not “unreasonable and unjust,” . . . their enforcement does not offend due process," Burger King Corp. v. Rudzewicz, 471 U.S. at 472 (1985) A freely negotiated, reasonable and just "forum selection clause" permits a Court in a State with a long arm jurisdiction statute that encompasses as many defendants as due process allows to assert in personam jurisdiction. Still a forum selection clause might be invalid under the model choice of forum act, Nebraska Version § 25-414. McKinney apparently argued on appeal that the forum selection clause was invalid as it was within an "adhesive contract." However, the Supreme Court said McKinney did not raise this to the trial court. An issue not presented to or decided by the trial court is not appropriate for consideration on appeal. Kubik v. Kubik, 268 Neb. 337, 683 N.W.2d 330 (2004)."In any event." the Supreme court goes on to say,that even though we dont have evidence one way or the other, (we are) satisifed the Ameritas contract was not in the terms of section 25-414 (c) one obtained by misrepresentation, duress, the abuseof economic power, or other unconscionable means." It might boil down to who files suit first, the Court noting that the Plaintiff gets dibs on jurisdiction, since, in the only annotated case construing 25-414, Woodmen of the World Life Ins. Soc. v. Puccio, 1 Neb. App. 478, 499 N.W.2d 85 (1993), the Court of Appeals agreed with an out of state employee that another large Nebraska corporation's forum selection clause was invalid. Wouldnt it have been nice if the Supremes had bothered to distinguish this case?

Why did the Pedestrian cross the road?

"On December 16, 1999, (Georgett) Tadros was crossing West Center Road at the intersection of 133d Street and was struck by a pickup truck driven by James Bowley, Jr. When Tadros started to cross the street, the white “walk” light on the crosswalk signal was illuminated. Tadros alleged the signal changed to red as she stepped from the median in the middle of West Center Road. As she crossed the northernmost eastbound lane, an eastbound white car that had entered the intersection came to a sudden stop and allowed Tadros to pass. She proceeded across the northernmost eastbound lane of traffic, but when she reached the southernmost eastbound lane, she was struck by Bowley’s pickup." Tadros v. City of Omaha, 269 Neb. 528 (3-25-2005) The Supreme Court re-entered the murky area of what a discretionary function is under the Political Subdivision Tort claim act, addressing whether the phases of the crosswalk signal was a discretionary function (13-910(2).) When a municipal road department decides to place crosswalk signals on a street, the timing of the light phases must conform to uniform standards, so any deviations of the phases outside those allowed in the manual are not "discretionary functions." The Court sent the case back to the trial court because the Plaintiff was not perse negligent for starting to cross from the median when the crosswalk was red, and other vehicles stopped for her.

Defendant conivcted of incest loses appeal

A defendant convicted of incest lost his appeal today in the Nebraska Supreme Court because he or his counsel failed to notify the Nebraska State Attorney General that he would contest the constitutionality of the criminal statutes he violated (State v. Johnson, 269 Neb. 507, March 25, 2005. No. S-02-1503.). Nebraska Statute section 28-703 prohibits sexual contact between adults and minor stepchildren. Section 43-2101 defines "minor" as any unmarried child under the age of nineteen. ON appeal the Defendant admitting that he had some sexual contact with a stepchild argued that because some references in Nebraska law to minors suggest different ages, that the criminal statute forbidding sexual contact with minor stepchildren was vague. The court first held that the defendant failed to notify the Attorney General that he would contest constitutionality of 28-703, noting the strict rule of procedure 9E (separate notice required to Clerk of Supreme Court when challenging constitutionality of statute). In any event the Court noted that the Defendant did not attempt to quash or dismiss the incest charge with an argument that the law was facially invalid. Justices Gerrard, Wright, Connolly and McCormack dissented, arguing that the Court should have considered a facial challenge to the incest law because of plain error. Oh well, I guess that this Defendant will have to wait to see how his ineffective counsel on appeal claim will go unlike our friend Kimberly Faust who stole lightning in a bottle when her first convicting went back from the Supremes because it found she had ineffective counsel, and from a direct appeal at that. Since any lawyer named McArthur is anathema to the Supremes, Mr. Johnson seems to have a pretty good shot going that route.

The Honorable Justice Robot, Presiding

Did you ever lose a ruling because of a case you did not cite, or because the Court ignored cases you did cite? Or did your attorney even ignore or overlook important precedent? Well thanks to advances in artificial intelligence, computers may well be doing a great deal of this core legal work in just a few years. The Economist "Technology Quarterly" section, March 12, 2005 issue, reports that although "many lawyers now use automated document-retrieval systems to store, sort and search through mountains of documents,.(soon even) smarter programs (will be) capable of not just assisting lawyers but actually performing some of their functions...improving (both) access to justice and reducing legal costs." An early version of legal analysis software from the 1980's assisted British immigration authorities in enforcing their law. In Australia, an artificial intelligence software program helps divorcing couples and their counsel fairly divide martial property. Another program allows judges to analyze their prospective sentencings of criminal defendants against past experience. Artificial Intelligence employs two common techniques, expert systems and machine learning. AI will draw relevant data to apply to critical factors and then use machine learning to learn how the data produced results in the past. Why should law resist the intervention of computers as more than just storage devices? Other fields of professional endeavor employ it readily, engineering, medicine, finance. As we have seen from the recent Supreme Court decision United States v. Booker, striking down mandatory sentencing guidelines, we cannot live and die by graphs, but "smart software has the potential to make legal advice more readily available, unnecessary court battles less frequent, and rulings more consistent."

Nebraska Supreme Court to Adopt Model Rules of Professional Conduct (maybe)

The Nebraska Supreme Court has proposed adopting with some revisions the ABA Model Rules of Professional Conduct. The latest proposed Nebraska Rules of Professional Conduct are here, pdf format. Some noted changes: 1.5(b) fee contracts must be in writing unless a small matter or a regular client. 1.6 Confidentiality: dropped a mandatory disclosure of client information to prevent serious bodily harm and in its place discretionary disclosure. 1.9 Duties to former clients: adds "Chinese Wall" rule for paralegals in law firm 1.15 Safekeeping client property (Trust Accounts Rule) eliminates option to keep client funds in some account other than a bank account even with client consent. 7.2 Advertising, allows limited cross professional referral agreements 7.3 Solicitation rules allow direct solicitation of other attorneys. The Model Rules went up to the Nebraska Supreme Court in summer 2004. The court proposed additional changes and re-introduced the rules for comment ending March 14. Finally this latest set of proposed rules has a comment period running until May. The Model Rules leave in the "politically correct" rule for 8.4 conduct prejudical to the administration of justice. Lets not offend anybody now, even though the ABA found no need to include such language in the Model Rules. Do these fits and starts toward adopting the Model Rules indicate a reluctantce of the Court to adopt the Rules at all? After all it seemed quite comfortable with the vague quaint language of the Model Code

Nebraska Supreme Court waffles again (this time on death penalty)

If anyone deserved the death penalty, certainly it would be Arthur Gales, convicted of attempting to kill a mother and then going back to his victims home to off her kids and rape one of them because they might testify against him. Defense counsel had no choice but to throw every defense to the death penalty against the wall to see what might stick to the Nebraska Supreme Court. This was Gales second shot at appealing his sentence as the US Supreme Court ruling Ring v. Arizona, occurred while this appeal was pending, see Schriro v. Summerlin (Ring is not retroactive) The electric chair reared its head again, as those against the death penalty know it is best to chip away at the death penalty a little at a time, in this case by attacking the electric chair. This time the Nebraska Supreme Court states that it will not overrule the electric chair because Gales counsel did not bring it anything new to consider. Is it just me or does the Nebraska Supreme Court sometimes display an annoying tendency to decide not to adopt the rule, leave a little wiggle room, and then suddenly it will, for example: the "Daubert" issue, discussed ealier; the various Reeves appeals; and the constitutionality of the Nebraska Medical Malpractice law? Finally the federal courts might throw out Nebraska's death penalty system, as the court notes the Nebraska Federal District court ruled appellate proportionality review unconstitutional. If that happens I think the Nebraska Supreme Court wont stand in the way.

Mother who embezzled to pay kids medical bills to be re-sentenced

The US District Court for Nebraska convicted Christina Haidley of embezzling $135,000 from a bank and sentenced her to twelve months and one day in prison. Christina contested sentencing under the Federal Sentencing guidelines, anticipating that the Supreme Court would soon rule on their continued validity, even though she had stipulated to the facts the court used to determine her sentence (United States v. Booker, _ US _ 2005). The Eighth Circuit determined from the District Court's imposing the minimum guideline sentence of oneyear plus a day, that the District Judge would have sentenced her to less time if the Guidelines had not applied. The Appeals Court further noted the Defendant used the embezzled funds to pay medical bills for her sick child. USA v. Haidley, 8th 2005 Imposing a guideline sentence would not have violated Christina's 6th amendment right to a jury trial because she agreed to the loss amount, $135,000; still the court found harmful error and ordered her resentencing (Blakely v. Washington _ US _ 2004). Christina benefitted from having counsel with enough foresight to anticipate the Booker ruling, because in another cited case, the defendant did not win a resentencing because he had not appealed the validity of the Sentencing guidelines (United States v. Parsons, 396 F.3d 1015 (8th Cir. 2005). Then again however, Robin Parsons is male.

Desperate Housewife wronged in Bankruptcy court

Cyntia Stege stole Gail Osborne's man and lost in court for it, but she might still discharge that debt in bankruptcy court, says the Eighth Circuit Court of Appeals in Gail Osborne v. Cynthia Marie Stage. Gail Osborne sued Cynthia for alienation of affections, a somewhat dated tort used to compensate spouses who enticers cuckold away from them. In 1999 a Missouri court awarded Gail $50,000. 5 years later Cynthia files for Chapter 7 Bankruptcy. Gail seeks to hold her $50,000 judgment "non-dischargeable" under 11 USC section 523(a)(6), which excepts from discharge thos debts caused by "wilfull and malicious injury to another (or her property)." The eighth circuit premised that the debtor must have intended the injury to the creditor (willful) and intended the harm to the creditor (malicious) (page 9 of pdf file). For the (now repealed) intentional tort of alienation of affections, the plaintiff must prove, (a) the defendant’s (adulterous) conduct, (b) the (wife’s) loss of the affections or consortium of his or her spouse, and (c) the causal connection between such (adulterous) conduct the loss (of affections) (page 9 o pdf). It is not necessary however to prove that the seducer was motivated by ill will toward the other spouse. The Court concluded that winning the alienation of affection verdict alone did not mean the alienation verdict was outside the bankruptcy, because by "finding Stage liable for alienation of affections, the jury did not necessarily find that she acted maliciously by intending to harm Osborne." Gail will have to prove harm to the Bankruptcy judge and cannot win on summary judgment. For that we will have to tune into future Bankruptcy court episodes.

"Drive-by" ADA lawsuits

A number of local news stories have described a practice a Lincoln attorney apparently imported from other regions of the country that is a best "drive -by lawsuits" alleging violations of the public accomodation provisions of the Americans with Disabilities Act. Of course this is despicable behavior that targets relatively defenseless small businesses and stores with allegations of minor violations of the ADA. Note the plaintiff and his attorney have not been targeting Wal-Mart, McDonalds etc. Even the normally PC Lincoln Journal Star found this practice of targeted ADA lawsuits distasteful, but i wonder whether its editors would have disagreed with the NAACP practice in the sixties of soliciting clients to file civil rights lawsuits. The US Supreme Court even gave civil rights organizations a pass when it came down to either doing "good" or violation State Attorney Disciplinary rules against ambulance chasing. Somehow looking through the lens of political correctness some aggressive ambulance chasing is more socially worthy than others.

Grand Jury testimony stays secret

Friday, March 11 2005 the Nebraska Supreme Court refused to allow disclosure to law enforcement grand jury testimony from a potential suspect, even though provisions of the Federal Rules of Criminal Procedure would have allowed opening up the testimony, In re Grand Jury of Lancaster Cty.,269 Neb. 436, No. S-04-587 (Note: link to the case on the Nebraska Supreme Court opinions website expires after 90 days. Lincoln Police Department investigators sought to review the appellants testimony to a 1990 grand jury hearing regarding the circumstances of her husband's death. The husband apparently had shot him self while the appellant his wife first said she was in another room when the shooting occurred. In another statement during a civil deposition the wife said the weapon fired as she struggled to take the weapon from her husband. The police department sought the wifes grand jury testimony at the insistence of one of the deceased's family member. The grand jury by the way did not charge the wife. The Lancaster County District Court held that the provisions of Federal Rule of Criminal Procedure 6 applied and allowed the police access to the record of the grand jury proceedings. The Supreme Court disagreed stating that FCRP rule 6 was incompatible with Nebraska statutes on grand juries. Good sound ruling however the Nebraska Supreme Court has in the past adopted Federal Rules that were incompatible with state rulings. For example Nebraska's adoption of the "Daubert" standard for expert testimony in the case Schaferman v. Agland Coop, 631 N.W.2d 862 (Neb. 2001) overturned even recent rulings that upheld the Frye general acceptance standards. Nebraska Rules of Evidence and Criminal Procedure are both provisions of the Nebraska Legislature. When the Nebraska Legislature adopted most of the Federal Rules of Evidence, in Chapter 27 the Frye test applied. Why is it up to the Nebraska Supreme court to decide now was the time of abandon the Legislatures understanding of evidence law and replace it with current understanding from the Federal Rules of Evidence? This inconsistent application of federal procedural rules however might boil down to something more elementary. The Grand Jury's opinon author Lindsey Miller-Lerman usually finds a way to rule in favor of female parties.

WE'RE NUMBER 2

Cornhuskers haven't gotten this high in any national rankings since the Osborne-Solich at high tide in 1999. Point of Law.com blog for March 8, 2005 notes that "Delaware. . for the fourth year running was selected by senior corporate attorneys surveyed by Harris Interactive for the U.S. Chamber of Commerce Institute for Legal Reform as the state with the most favorable litigation climate." Right behind in the voting is Nebraska . Indeed, look at almost all of the proposed tort reform measures in Congress and the Nebraska State Legislature instituted them long ago. Medical malpractice reform is hot now; a good summary of the Nebraska Hospital-Medical liability law passed in 1976 shows that Nebraska imposes a gross cap on a malpractice plaintiff's total injury, joint and several liability, limits on hospitals' and physicians' liability in exchange for acquiring coverage, a more restrictive definition of the duty of care, provisions for counting some collateral source payments, and the possibility of the prevailing party's winning attorney fees, among other provisions. Congress has proposed caps on non-economic damages, attorney fees, deductions for collateral source payments and structured settlements of some awards. Med-mal plaintiffs in Nebraska might run into a jam, however. Where the Nebraska gross cap is $1,750,000 (RRS Neb. 44-2825(d) a plaintiff who sustained $1,000,000 in economic damages with $750,000 of non-economic damages would get only $1,250,000 total damages because the Federal $250k cap kicked in. A resident of "tort-hell" southern Illinois could win unlimited economic damages from a sympathetic jury and lose only non-economic damages exceeding $250k. Before med-mal reform goes ahead at the federal level, Congress should take into account those states that were ahead of the game, like Nebraska and Virginia, another state that imposes a gross damages cap on med-mal actions.