I just can’t help myself on this case. But these facts worry me as an expert in self-defense and one who testifies about this all the time. Facts assumed to be true:

1. Zimmerman sees and follows Martin

2. Martin knows this and is spooked/afraid that he is being followed

3. Zimmerman gets out of car and Here’s where it gets disputed: Did Martin ambush Zimmerman because he was scared that he was being followed or did Zimmerman confront Martin?

a. There is evidence (Janteal’s testimony about what she heard on the phone) to show that Zimmerman stopped Martin and asked what he was doing there.

b. Zimmerman says he was ambushed when he got out of the truck.

4. Most analyses I’ve seen have said that Zimmerman was allowed to defend himself with lethal force if he was in reasonable fear of his life. But was he?

5. As best I understand things, the law requires that someone who aggressively pursues a confrontation and then is overmatched must clearly indicate that they intend to break off the fight and withdraw. Only then can they defend themselves with lethal force.

6. Did Zimmerman attempt to submit, break off hostilities, cry “uncle” or something? There is no evidence of that. But there is evidence that he continued to struggle, cried out for help and reached for his weapon.

7. Here’s the KEY part: Zimmerman never quit, never backed off, never indicated he wished to retreat. Instead, he kept on struggling and reached for his weapon.

If Zimmerman is acquitted, any martial artist who is provoked into a fight and defends himself had better win quickly thoroughly and incapacitate the other side. Because this case could give the guy who thinks he’s losing the right to pull his weapon and kill you without any consequences.

Below is a link to an ugly analyses of the Zimmerman/Martin trial.  I have huge problems with it for the same reasons I posted about on July 2nd.

http://abcnews.go.com/US/george-zimmerman-convicted-murder-manslaughter/story?id=19598422#.UdquOazjxeR

What, exactly, are those problems of mine?  Simple:  the analyses is correct except in 1 critical detail:  It appears from the analyses that who provoked the fight doesn’t matter. But it does.  It does morally and legally.  If you provoke the fight you must withdraw, not just be losing the fight.  You must withdraw, or give up or something to show that you don’t want to fight any more.  You can’t just provoke a fight and, when you start losing, shoot the guy and claim self-defense.  If you do, every punk in the world would pick a fight and, when the pick on the wrong guy, claim self-defense.  Sorry MR. Dan Abrams, it doesn’t work that way.  If Zimmerman withdrew or surrendered No Mas”or something  then maybe he has a case. But I haven’t heard anyone testify that the tried to run or withdraw or surrender.

I was invited by neighbors to join them for hamburgers, hot dogs etc. and then the fireworks.  I accepted.  My neighborhood really loves the 4^th of July.  We all kick in money and then someone goes and buys fireworks (out of state so we get the “good stuff” that goes BANG/BOOM).  Anyway, I was sitting around with my friends and their children and the kids’ friends talking.  I don’t know exactly WHAT I said but the young girl (woman) sitting next to me says “Oy Vay” and I completely cracked up.  You see, she’s Chinese ancestry, born in Ho Chi Minh City, Vietnam and fully Americanized—even to the extent of using a Yiddish expression with complete accuracy and tone.  Only in America.

Then we all started talking and comparing family notes.  My hostess’s family came to the US on the Mayflower; my host’s family came over in the early 1800s.  I’ve already identified the young guest; I’m a first generation Jew and my ex-wife’s family came to the US in 1691 and my girls are members of the DAR, the Daughters of the Confederacy and the Dames of the Magna Carta (their mother’s family set this up for them).  Only in America.  And only on July 4^th!  Is it any clearer why I love this country?

OK.  I don’t like posting about Trayvon Martin/George Zimmerman trial.  Why?  Because everyone is ranting about race, suspicious behavior and Stand Your Ground laws.  I have a different issue.  What?  What could nobody else possibly be discussing that concerns me?  Simple:  I teach self-defense.  I testify about self-defense issues and the proper or improper use of martial arts.  I testify about excessive force cases. And I am alive.  So what you say?  Well, if I’m out walking at night and somebody is following me in a car, then follows me on foot, I’m more than a little likely to get upset.  I will surely think they mean me no good.  I will probably not want to get caught unprepared or approached from behind.  I will be sure that the best way to deal with a threat is to confront it head on.  If I think the person following me is armed I will not be nice about it either.  I do not like to take chances with possibly armed people following me at night.  So will I run away?  If I can. But if I cannot run away or evade, I will not passively await.  I will confront the person.  “What are you doing?”  “Why are you following me?”  “Get away from me.”  Any and I mean any non-compliant move by the person following me will be treated instantly as a serious threat.   So, I am going to react severely to the threat.

I haven’t followed the Martin/Zimmerman trial but here’s my point:  This trial could set an ugly precedent where someone can follow me, behave in a threatening manner towards me, and yet, when I defend myself, shoot me and claim self defense or Stand My Ground?  Nonsense!  I feel very strongly that I have the right to defend myself a strongly as needed short of lethal force under the circumstances I described above.   And I won’t stop until the threat is subdued or the threat runs away (withdraws).  Nothing else is adequate to protect me.  Now these may not be the circumstances of the trial, but the Martin/Zimmernan trial is only what got me to think about this issue.

1.                  Sadly, I’ve almost come to expect that the other side will lie about me to my client and their own.  I particularly love it when OC writes a letter to me accusing me of incompetence and then adding a settlement proposal I have to take to my client.  What a great way to try and poison relations between me and my client.  It happens so often I’m sure it works on somebody.  It’s never worked with my clients (thank G-D).   But I have to wonder why client’s fall for the trick.  Surely they know that OC will do anything to disrupt things.

2.                  If you are a client and you lie to me, two things will happen: you are likely to lose the case because what you lie to me about is going to be important and when I don’t trust you to tell the truth I have to cross-check everything and that is costly.  Guess who pays? In both cases?  You do.  My best advice: don’t lie, mislead, spin, prevaricate or obfuscate.  I’m your lawyer.  If you can’t tell me you can’t tell anyone.  And I bet you have told someone and they can’t wait to tell everyone else–except me of course.

3.                  If you haven’t paid me, why are you telling me I am your attorney?  Or trying to tell me what I should do?  Or tell me I should do another project for you?  I don’t get it.  If you don’t value my work enough to pay for it, why should I give you something you don’t value?

4.                  No, I am not a mind reader and do actually need to know (fill in the blank here but it is something I’ve asked you for).  I just love to drive clients crazy asking for things I don’t need just to make it appear that I’m working. Believe me, I don’t have the time to do that.

5.                  About those phone calls:

a.                   I absolutely hate it when I get a call or message from a client saying “I’ve been leaving messages for you for weeks” when I am absolutely sure that that isn’t true and I can prove it.  Don’t lie to me. Don’t exaggerate, don’t spin, don’t do anything deceptive.   It makes me doubt you even more and your credibility will be key in winning your case.

b.                  I haven’t figured out how I’m supposed to know you have been calling me if you don’t leave any messages. Then, when you do get me and you complain, saying “I’ve been calling you for weeks” what am I supposed to say?

c.                   Or, “I called you 4 times and you didn’t return my call!”  Yes, you called yesterday at 9, and was told I was in court, you called again at 2 and was told I was still in court and would probably be out for the day, and you called at 4 and was told I was in court. You then called at 8 am this morning, before any of us were here, and it is now 10am.

d.                  Yeah and what about when you have left a long, detailed message for a client and then they call you right back, saying you called? Did you get my voicemail? No, I just saw you called.  Would you please go check your voicemail and then call me back.

6.                  All we do is litigation.  So if a client tells me that, if the other side hires a BigLaw attorney they will go get a BigLaw attorney of their own, what am I supposed to think?  More to the point, what am I supposed to do with that fact?

7.                  You can have the work done quickly, cheaply or well.  Pick 2 of the 3.  You cannot get all 3.  I don’t know if it’s a rule of nature, but it’s a rule of lawyers.

You are supposed to do the appeal pro bono because (I want you to).  How am I supposed to feed my girls?  Pay my staff?  Cover the Mortgage?  All because you don’t want to pay?  What am I missing here?  Robert Heinlein said it best: TANSTAAFL!  (Look it up–it Means There Ain’t No Such Thing as a Free Lunch)

Don’t do them.  They play games and are not accurate. Even the US Supreme Court has acknowledged that there is no consensus on polygraph reliability.  Some courts have even held that the polygraph does not meet basic evidentiary standards enunciated in Daubert by the U.S. Supreme Court.  Why is this?  Especially when “everybody knows” that polygraphs are very useful in finding the guilty (at least on TV).

Polygraphs are good for telling if the person is stressed out. That’s all.  So how can someone “fail” a polygraph?  Easy.  It is not the machine that determines whether a person passes or fails but the examiner.  A common trick is to tell the examinee that s/he had failed.  Then the examiner leaves the room.  When they come back they ask the same questions again. If you change your answer, you lose.  Some examiners use bad cop tactics and tell the examinee they KNOW you are lying.  Since the U.S. Supreme Court has said that police can lie to you or trick you in trying to get you to confess, get what they do now?  Yep.  Lie and trick you. Play mind games with you.

Then they look for where the stress in your voice has been measured.  Funny thing how “stress” and how much of it is “reasonable” is a subjective thing.  And guess who decides?  Not you.

Bottom line: DON’T DO POLYGRAPHS.  You have nothing to gain and a great deal to lose.

Probably not.  But there are many things I do that keep costs down.  Of course, they can all go out the window if the other side is determined to fight tooth and nail over everything regardless of their own costs (see yesterday’s post on this very topic).  As someone once said, “the best way to control litigation costs is not to litigate.”  Another key point: what do you, the client, want to accomplish. Do you want catharsis?  To teach others you won’t be bullied? To just get closure?  Each of these can change the cost equation.

But still, generally, I tell clients that litigation can be done fast, done cheap and done leaving no stone unturned.  Pick 2.  You cannot have all 3.  I try to find a balance. How?  I keep the overall strategy (formulated at the client’s direction) in mind as I decide on tactical issues and next steps.  But every step in the litigation should be taken with a view toward achieving victory at trial.  Each move should be predicated on obtaining a fact that will eventually appear in a Motion for Summary Judgment or in my closing argument.  That keeps me from getting distracted.  How much discovery, what type of discovery (depositions, interrogatories, requests to admit, etc.), whether or not to file a motion, objections to their discovery, all these issues and many more get evaluated through the lens of what is needed to win at trial.  And never forget:  Discovery disputes can really run up the bill and frequently do nothing for or against your case.

Facts: Company A sells all its assets (but not its stock) to Company B.  Some of B’s owners were also owners of A.  A is then formally dissolved according to your state’s requirements while B continues operations.  Is Company B liable for Company A’s debts?

IF your state’s law provides for notice to creditors upon dissolution and some provision for Creditors to place claims, and IF A gave notice to all its creditors that it was dissolving so that the creditors could file timely claims, any CREDITORS who did not timely file a claim lose.  That’s the point behind most corporate dissolution statutes; to provide for orderly dissolution and payment of creditors claims timely filed and cutting off claims that aren’t.  But if A did NOT do it properly and follow all procedures, then the owners of A and possibly Company B may still owe money.

Are there exceptions to this rule?  Yep.  This is the law and there are always exceptions.  Generally there are 4 exceptions (the details are state specific so I can’t go too far into them in this general post):

(1) where the purchaser expressly or impliedly agrees to assume such debts;

(2) where the transaction is really a consolidation or a merger;

(3) when the purchasing corporation is merely a continuation of the selling corporation;  and

(4) where the transaction was fraudulently made in order to escape liability for such debts.

To determine if there is a merger usually courts will examine:

(1) whether there is a continuation of the enterprise (each state is different),

(2) whether there is a continuity of shareholders (ditto),

(3) whether the seller corporation ceased its ordinary business operations, and

(4) whether the purchasing corporation assumed the seller’s obligations (impliedly as well as explicitly).

To determine if Company B is merely a continuation of A, you must check to see if only 1 corporation remains and if the stock, stock holders and directors are the same (or substantially the same).

BUT, as I said above, the devil is in the details.  While the standards are pretty much the same for all states, the way the courts examine the facts vary quite a bit.  In case of doubt (and I assure you that there will be doubt or should be) talk to a lawyer and learn how to do it right.  Because if you don’t you will be calling me asking for help when Company A’s creditors come after you.

What have you found to be the quickest and most effective way to shut down a crazy pro per party who is threatening civil litigation against everyone and their mother?

First, there is no guarantee that she will go away no matter how you approach her.  In some cases, a pro se will go away if you ignore him/her. In others, it makes them more aggressive. And vice versa–aggressive response could make them go away, or could make them into a self righteous crusader.

Second, don’t assume that she is stupid.  Occasionally the pro per plaintiff can be cunning and clever enough to drag things out for years.

Third, Courts here in the DMV will give the pro per the opportunity of correcting procedural and substantive errors that they would not have done with lawyers.  Bottom line: you could be litigating with her for a long time.

There are 2 general theories of how to deal with pro per parties. One is to push back hard.  File Motions to dismiss, fight inappropriate discovery, and don’t get sucked into fights over trivia.  In case of doubt, bury them in paper.  Get your Motion for Summary Judgment.  If necessary, file for sanctions.  Alternatively there is what a friend calls the tit-for-tat method.  He call it the “reasonable gets reasonable” approach.  You show you can be reasonable by making a reasonable (not final) set of concessions and offers.  Then indicate that reasonable response is in hope that she will respond reasonably.  If she is reasonable in response, then respond favorably.  But if she is unreasonable, you take away some of your “reasonable” offer.

I hear people regularly chastise Congress and the Courts for over-reaching, for asserting powers that the Constitution never gave them.  Well ….  Maybe.  But maybe not too.  Huh?

The “necessary and proper” clause of the Constitution explains a lot.  It can be found in Article I, §8, cl. 18.  The U.S. Supreme Court, in 1819 said that “[G]overnment is acknowledged by all to be one of enumerated powers,” McCulloch v. Mary-land, 4 Wheat. 316, 405 (1819).  So every law must be based on one of the enumerated powers we all know about.  But, in addition, the government must also “be entrusted with ample means for their execution.” McCulloch, 4 Wheat., at 408. Accordingly, the Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are “convenient, or useful” or “conducive” to the authority’s “beneficial exercise.” Id., at 413, 418; see also id., at 421 (“[Congress can] legislate on that vast mass of incidental powers which must be involved in the constitution . . .”).  By the way “necessary” does not mean “absolutely necessary”.  Id. at 413-15.  If the end is legitimate, within the scope of the Constitution, and the means appropriate and the law is constitutional.  Id.

What does this mean?  Well for about 195 years (at least) the U.S. Supreme Court has let Congress decide not only what laws the enumerated powers permit, but what other laws that are convenient, useful or helpful to allow the federal government to act, should be passed.   Oh and by the way, if you really want to see how this helps us, read United States v. Comstock, and watch how the Supreme Court used the Necessary and Proper clause to keep perverts and sex offenders locked up forever.