Do Cops Get It Wrong?

Absolutely.  I won’t go into all the conscious and unconscious biases cops have.  (But if you Google “witness lineup issues” or read Balko’s blog in the Washington Post you can see a lot of it.)  But what about when there is an after-the fact investigation and a police report prepared?

Mounted policeman at Jefferson Memorial

(Photo credit: WorldIslandInfo.com)

First off, since the cop did not witness the incident, s/he will have to rely upon witness’s statements and/or other physical evidence at the scene.  Sometimes the officer will make a drawing or take photographs, but not every case gets the full CSI/NCIS treatment.  And sometimes there is no “Abby” to figure out that they got it wrong.

So how do you know if the cop got it wrong?  Look at the elements of your case, consider all other factors, and how the facts would support your claims.  What other witnesses are there?  Are there alternative explanations?  What incentives/motivations of the various witnesses are there that could explain the witness statements.  Check into external factors (cell phone usage, alcohol/drugs, other distractions, etc.).

Don’t forget to examine the improbable.  I had a case once in DC where there was an accident in which both drivers SWORE they had a green light.  I *knew* they both couldn’t be correct.  But ….  It turns out that one of the lights had been hit by a car a few days earlier and rotated 90 degrees.  So it *looked* like both had a green light.  Everyone, including the police, *knew* that they couldn’t both be right but they were.

Good case for me too against the city.

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Are Laws Limiting Magazine Capacity To 10 Rounds Constitutional?

A federal district court has refused to issue a preliminary injunction blocking Sunnyvale, California’s ban on magazines with more than 10 rounds. (Fyock v. City of Sunnyvale (N.D. Cal. Mar. 5, 2014).) A large part of the court’s rationale was that “a prohibition on possession of magazines having a capacity to accept more than ten rounds applies only the most minor burden on the Second Amendment,” and I think that’s both correct and legally relevant.

The full article is here:

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/06/are-laws-limiting-magazine-capacity-to-10-rounds-constitutional/

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big vs little

There is always an argument about whether clients are well served by choosing big law firms.  Well, Bloomberg BusinessWeek did a long article in May 2013 where it discussed how big firms are cratering.  A couple of things stood out in my mind:

1.        According to Altman Weil, a leading management consultancy specializing in law firms, “there are no economies of scale in private law practice.” Yes, you read that correctly: “Larger firms almost always spend more per lawyer on staffing, occupancy, equipment, promotion, malpractice, and other nonpersonnel insurance coverages, office supplies, and other expenses than do smaller firms.”  And

2.       The lawyer you think you are hiring at the big law firm may be gone tomorrow and, in any case, is probably not the lawyer who will actually be handling your case.

“just sayin’”

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And you thought a short contract was best

Do you remember the Hobbit?  The contract Bilbo made with the dwarves seemed quite short didn’t it?  In case you forgot, this is what it said:  “For your hospitality our sincerest thanks, and for your offer of professional assistance our grateful acceptance. Terms: cash on delivery, up to and not exceeding one fourteenth of total profits (if any); all travelling expenses guaranteed in any event; funeral expenses to be defrayed by us or our representatives, if occasion arises and the matter is not otherwise arranged for.”

Cover of "The Hobbit"

Cover of The Hobbit

But words alone are not always enough to understand exactly what the contract says.  To understand Bilbo’s contract with the dwarves, I recommend you read the analysis at http://www.wired.com/underwire/2013/01/hobbit-contract-legal-analysis

Bottom line:  this author shows that the contract has at least 40 major sections and a number of footnotes, codicils and digressions.  It’s worth reading to understand why lawyers are so specific about words and how things can get out of hand quickly.

 

 

 

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Takeaways from the Trayvon Martin Case

I was recently interviewed by attorney Stephen Kunen about the famous Trayvon Martin case in Florida. Read the interview here.

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Shareholder’s rights

So you own 70% of your company and 3 others each own 10%. So you can do what you want right?  WRONG!  In every state I’m admitted in (VA, DC & MD) minority shareholders have rights. Among other things, they have the right to see the tax returns, inspect the company records and be kept informed of the financial status of the company.  This last is a bit vague but it usually consists of getting copies of the quarterly reports prepared by the company’s accountant.

But if 1 (or more) of the minority shareholders is a PITA, you cannot cut them off. You cannot force them out.  You must continue to obey the law no matter how obnoxious they are.  Over the years I’ve heard of several schemes to run off PITA minority shareholders:

  • Just dissolve the company and restart it with a new name;
  • A reverse stock split and they buy up the fractional shares held; and
  • Buy out the PITA minority shareholder.

But the majority shareholder (who is likely to be a Director, as well), has fiduciary duties to the corporation (and possibly to the minority shareholder(s), as well, depending on how state law approaches the issue).  In addition, people who are PITA-enabled tend to get upset when they are forced out.  A lawsuit would surely be started arguing that his/her rights and property were stolen.  There’s a good chance they would win too.

Bottom line:  choose your partners and minority shareholders carefully.  Getting married is easy but the divorce will be long, expensive, and painful.

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What’s the ultimate compliment for a lawyer?

I’ll tell you:  it’s when another lawyer who was on the other side of a case calls you up and sends you a good case.  Not a bad case or a bad client, but a good case with a good client.  This has happened to me a few times and I always treasure the compliment.  Once the lead litigation partner at one of the biggest firms in Virginia sent me a good case with a good client.  His reason:  he knew I would give the client great service at a fair price.  Another time, one of the most famous lawyers in the United States, who has appeared several times in front of the U.S. Supreme Court and taken the hardest cases, sent me a client.  Why?  Because his firm was too busy and he, too, knew I would do right by his client.

Now that is the ultimate compliment.

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An article worth reading.

http://www.nytimes.com/2013/12/26/opinion/greenhouse-a-work-still-in-progress.html?ref=opinion&_r=0

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The U.S. Supreme Court sometimes makes new law and I don’t notice.

In this case, apparently they ruled that, confronted by police, in order to have your 5th Amendment right to remain silent honored, you must speak.  Apparently you must speak and affirmatively invoke your right to be silent and to have an attorney.  You cannot just sit quietly.    This article summarizes the situation.  Pay attention. These are your rights and you must know what they are in order to claim them.

http://www.volokh.com/2013/06/17/do-you-have-a-right-to-remain-silent-thoughts-on-the-sleeper-criminal-procedure-case-of-the-term-salinas-v-texas/

this blog post has a wonderful discussion of what Salinas could do to you.  Read it and pay attention.  It also illustrates the dangers of talking to the police, even a little bit.  Bottom line:  Don’t talk to  the police. Even A Little Bit.

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Bilbo Baggins contract with the Dwarves analyzed.

This lawyer clearly has too much time on his hands but it makes for a fun read and illustrates a number of very valid legal points.

http://www.wired.com/underwire/2013/01/hobbit-contract-legal-analysis

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