Why Jailing Rowan County Clerk Kim Davis was Legally Appropriate


The recent decision by United States District Court Judge David Bunning to hold Rowan County (Kentucky) Clerk, Kim Davis, in contempt of court and place her in jail has set off one of the greatest firestorms of debate in recent memory. As most people know, Ms. Davis refused to issue marriage licenses to same-sex couples seeking to wed, citing her strong religious objection to same-sex marriage. Having first filed suit herself (against the Governor of Kentucky), essentially seeking approval of her plan of to refuse same-sex licenses, and having lost her suit at both the district court and appellate court levels, she nevertheless proceeded as planned, ignoring the rulings against her.  Thereafter, when specifically ordered by Judge Bunning to fulfill her official duties as clerk and issue licenses to everyone, including same-sex couples, she simply refused to do so, leading Judge Bunning to find her in contempt and place her in jail until she agrees to comply. While most Americans would be fired for willfully refusing to do their jobs as assigned, as an elected official, Ms. Davis is not subject to such termination, but can only be impeached from her office. It may ultimately come to that, although it remains to be seen if the Kentucky legislature will pursue that action, and they are not even back in session until January. Of course, Ms. Davis has the option of resigning her position if she doesn’t want to handle the tasks of her job, but apparently she otherwise enjoys her $80,000/yr position, and simply wants to choose what parts of the job meet with her personal moral code. Unfortunately for Ms. Davis, that simply isn’t the way the world works.

The quotes from her supporters, and from those in the country who generally oppose same-sex marriage, raise rhetorical claims as bold as stating that she is being “jailed for her religious beliefs” and is being “persecuted”. Republican Presidential candidate Mike Huckabee called her arrest the “criminalization of Christianity”. In fact, her attorney said “Today, for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is the union of one man and one woman.” Realizing that legal counsel are supposed to advocate for their client, I can forgive that hyperbole, but his statement, of course, is patently wrong. She was placed in jail for contempt of court, not her own beliefs, which she remains free to have and to espouse from the highest mountain. In fact, there is nothing wrong with her handing over a license to a same-sex couple while verbally preaching the inappropriateness of their relationship – as long as she fulfills her job duties and gives them the license for which they paid.

The foundation of the problem is that people like Ms. Davis, who vehemently oppose same-sex marriage because of their religious beliefs, want to claim that their religious values trump the laws of our country. One writer, David French, suggests that Ms. Davis’ actions were appropriate because the United States Supreme Court’s decision in Obergefell v. Hodges (which held same-sex marriage to be valid and legal under the 14th Amendment) was itself illegitimate, so those who disagree with it should simply ignore it and act as they wish. In fact, he pointedly states that Ms. Davis should neither resign her position nor comply with the law, but “resist”, because of his belief that the Supreme Court’s ruling in Obergefell is illegitimate.

Following the line of reasoning of Ms. Davis’ supporters, any American who disagrees with a statute, regulation, court decision or policy would be allowed to simply refuse to follow it, at least if they can cite that their strong moral and religious beliefs dictate that they do so. The inherent failure of that logic is that once we start allowing anyone to simply cite his or her “religious beliefs” in order to ignore, subvert or just plain violate the law, that ultimately leads to anarchy. Many of the same people who support Ms. Davis’ actions because of their strong Christian beliefs would be appalled if a similarly elected county clerk elsewhere cited his strong religious beliefs (pick the religion….Islam, Judaism, Buddism, Druidism.…it doesn’t matter which) to refuse to issue hunting licenses, gun licenses, housing permits, etc. One current satirical picture making the social media rounds shows a purported note posted by a “Muslim” clerk, contending that his religious beliefs forbid him to issue driver’s licenses to females. Ridiculous? Sure. But ultimately it is the exact same principle. Likewise, some of the same people who support Ms. Davis today were likely outraged by the actions of Cassius Clay (a/k/a Muhammad Ali) when he refused to submit to the draft because of his religious (Muslim) opposition to the Vietnam War, leading to his prosecution. Just as in this case, many of Ali’s supporters felt he was being persecuted. Different religion, different time, different issue, different opinions…SAME concept. It just depends on whether it is your particular belief that’s the flavor-of-the-day.

One of the reasons our founding fathers established separation of church and state in our Constitution was so that our country would not be run by one particular religious group or another, and that no other religious group might be persecuted for differing beliefs. Everyone in the United States is free to believe what they want and worship who they want. But ask any member of any religious group about their particular religion and they will likely tell you that their beliefs are correct and infallible, constitute the only “truth”, and that all other religions are wrong (Muslims consider non-believers to be “infidels”; Christianity’s “Ten Commandments” dictate that one shall “not have false Gods before me”, etc.). The fact that people so strongly cling to their “faith” and the belief they have in the correctness of the teachings of their religion is to be celebrated. That is the fundamental core of religious freedom. But it is exactly that faith that may run headfirst against a law that isn’t quite in tune with one’s religious beliefs. That is where the concept of separation of church and state is most important, and why it applies here. It is the government (in this case, the local County) that issues marriage licenses, and Ms. Davis is an elected County official. She is granted no discretion under the law to refuse licenses to anyone who pays their fee and properly registers. However, if you read the comments submitted by readers of the various stories in newspapers or on the internet about this event, you are bound to see many who claim that “God’s law” is above the laws of the United States. That again, is the hallmark of faith, but it is not the law under which this country was founded. One man’s God is another man’s satan, and as such, one man’s belief in what God’s law may be is going to conflict with those of other religions. However, to claim, as Franklin Graham did, that “our religious rights and freedoms are being trampled upon”, is disingenuous. No part of Judge Bunning’s ruling prevented Ms. Davis from worshipping as she wishes, or from exercising her religious freedom. If she does not agree with same-sex marriage, then she is in the wrong job, given that it will now require the issuance of licenses to same-sex couples who wish to get married. To claim that she held that office before the Supreme Court handed down Obergefell likewise misses the point…laws DO change, and quite frequently. It wasn’t long ago that possession of concealed weapons or marijuana was illegal in many states where those are now within the law. Undoubtedly, many residents of states where guns and weed are now legal disagree with those laws – but they ARE now the law. Despite Ms. Davis having been elected at a time when same-sex marriage was illegal in Kentucky, the Supreme Court has ruled (whether you agree with it or not) that same-sex marriage is now legal, and that statutes to the contrary are invalid. Likewise, to claim that there is a Kentucky statute to the contrary ignores the “supremacy clause” of the Constitution, which makes Federal law (in this case, the 14th Amendment) supreme over conflicting state laws. Ultimately, therefore, Ms. Davis has the choice of leaving her job if she disagrees with the law, or complying with the requirements of her office.

The Christian right, who most vocally support Ms. Davis, claim that Obergefell was wrongly decided. As noted above, David French pointedly so stated, as did Franklin Graham and others. Once again, however, the problem is that there will never be unanimous agreement about the results of each Supreme Court case. Obergefell was decided by a 5-4 majority, so clearly there were even Supreme Court Justices who opposed the ultimate ruling. Similarly, most elections in our country are decided by a slight majority of votes. In any Presidential election, it is not incorrect to state that almost one-half of the people of our great nation oppose, and perhaps hate, the person elected to our highest office. What makes our country great is that after that election, despite our differences, we have always had a peaceful transition of power, after which, for the next 4 years, the opponents of the newly elected President renew the process of disagreeing openly with every decision or action taken by the Executive branch, so that they can work to bring about change at the next election. Court decisions are no different. People disagree with them regularly. And when we are unhappy with the outcome, there are legal appeals to higher courts available, up to the Supreme Court. Once the Supreme Court rules, that becomes the law of the land, whether you agree with it or not. For those who claim that the Supreme Court cannot “make” laws (that being the role of the legislative branch) and who want to call any judge an “activist” whenever they hand down a ruling with which you disagree, that’s a common argument, but doesn’t resolve the issue. When the Supreme Court interprets laws, their interpretations do become the law of the land. Disagreement with the Supreme Court’s rulings (and, with each ruling they issue, a large group of people are bound to disagree) does NOT justify ignoring whatever has become the law of the land. The answer is the ballot box. Elect new representatives, Senators and President. Seek the appointment of new judges and eventually the decisions you believe to be wrong may be re-considered. I venture to guess that many of the people who support Ms. Davis were on the “winning” side of the infamous Bush v. Gore decision in 2001. Undoubtedly, many who supported Al Gore in that election felt the Supreme Court’s decision in that case was as “illegitimate” as do those who oppose the Obergefell ruling. But opposing the Supreme Court’s decision in Bush v. Gore did not give those in opposition the right to refuse to comply with the laws of our land, such as a right to refuse to pay taxes, etc., simply because they didn’t want to recognize George Bush as the President. That remained true no matter how strongly they opposed or disliked him, and no matter how wrong they felt the Supreme Court was in its decision.

We must accept Supreme Court decisions as the law of the land and follow the law until the laws change through the appropriate process, in order to avoid collapsing into anarchy. Those who refuse to follow the law may be subject to sanctions or punishment, but it is NOT for their beliefs or convictions, but for their willingness to refuse to comply with the law. They are NOT denied their first amendment rights by being punished for non-compliance with the law, and to suggest to the contrary is a gross misrepresentation. In this case, Ms. Davis did NOT go to jail for exercising her first amendment right to freedom of speech, since she was free last week, and still is today, to worship as she wishes and to say whatever she pleases about same-sex marriage. In fact, while handing out marriage licenses to same-sex couples she would have been fully within the law, pursuant to her 1st Amendment rights, to say whatever crossed her mind, no matter how rude, insensitive or politically incorrect it may have been. But she had to do her job, including issuing those licenses to same-sex couples, especially after being directly ordered to do so by Judge Bunning. It was her refusal to do that – her job – and willfully violating a court order to do so that sent her to jail.

 In the end, this fight is a classic example of a circumstance where one believes that if things don’t go your way you have the right to ignore the law because only your perception of things is correct. But God forbid someone whose beliefs differ from yours should take the same type of action and ignore a law that you support. Then there’d be hell to pay…

From the Ashes of Ferguson — Litigation


It didn’t take long. Less than three weeks after the Michael Brown shooting, a lawsuit has been filed. Not, however, on behalf of the grieving family, but on behalf of several protesters and others who claim their civil rights were violated in the days that followed. It is an unfortunate fact of life that out of any tragedy comes not only opportunity, but opportunists.

The actual circumstances of the Michael Brown shooting are probably known to only one or two people – the officer involved and perhaps the friend of Michael who was with him at the time, assuming he wasn’t running, ducking or hiding during some portion of the event. Other eyewitnesses may have seen parts of the event, but as we all know, even the best eyewitness accounts tend to be flawed, somewhat tainted over time, and sometimes influence by outside factors and comments. But in the moments after the shooting, enough people came to believe, correctly or not, that Michael was “executed” in cold blood, that it led to a gathering crowd, calls for justice, and vocal protests. This is America, and that’s our citizens’ Constitutionally given right. Unfortunately, things got much worse before they started to get better.

First, the protesters became boisterous. Second, the police circled the wagons. Third, looting of businesses and destruction of property began. Next, the police responded vigorously under the belief that a show of power would settle things down. That strategy backfired. Eventually, cooler heads prevailed and the violence dissipated, destruction of property eased, and loud but non-violent voices were heard. All along the way, of course, many of America’s publicity-seeking “talking heads” appeared in town to get their close-ups on national TV. Among these “15 minutes of fame” individuals were several local “leaders”, some of whom don’t even call Ferguson residents among their constituents. However, I recognize that the issue of racial profiling and police aggression is larger than just Ferguson and their message has merit, and if they can convince a news outlet to cover them, then that’s great. What is more troubling are the out-of-town bandwagon jumpers, many of whom merely used these tragic events to further their own personal agendas. While most of the looters were not really protesters, but just individuals who lined their pockets under the guise of public anger, so too are some of the other opportunists.

Although the investigation into the shooting continues, and the grand jury presentation of evidence may take weeks to complete, the streets of Ferguson are slowing returning to some sense of normalcy, and some of the damaged businesses are re-opening. The news crews have left Ferguson for the most part, so there are no more cameras to stand before. That is the reason, I believe, that the opportunists decided to take another approach. While Michael Brown’s family somehow retained Trayvon Martin’s attorneys to represent them (although for some reason, I doubt they flipped open the Yellow Pages to find them), one can understand how the loss of a son would cause them to seek legal counsel. Suit, however, was quickly filed on behalf of the “victims” of various “civil rights violations” – in particular, five individuals out and about during the unrest — in the U.S. District Court for the Eastern District of Missouri (read the actual Complaint at: http://www.blfjustice.org/Ferguson%20Protestor%20Lawsuit-1.pdf) by a group of  attorneys from the Black Lawyers for Justice, none of whom practice in the St. Louis area, lead by Malik Shabazz.

The claims in the civil rights suits filed by Mr. Shabazz and others relate to the police response during the early days of the post-shooting protests. Various individuals claim to have been manhandled (if not roughed up), threatened, unjustly arrested, etc. For each alleged indignity they suffered, millions of dollars of compensatory damages are sought, as well as millions of dollars in punitive damages. Once again, for the same reason that I can’t judge the merits of the prosecution of the officer who shot Michael Brown (having not heard all the evidence), I can’t judge the merits of the individual claims that some of the plaintiffs in this case may have. Quite frankly, we know some things got out of hand, and some individuals may have very legitimate claims, just as others may be personally responsible for bringing some police action or their arrests upon themselves. The most troubling thing about it all to me, however, is not even the seemingly opportunistic, ambulance-chasing approach taken here (how many attorneys rushed into Oklahoma City to sign up clients after the bombing there in 1995?), but a comment attributed to Mr. Shabazz on NBC News: “If they won’t police the people right, then we have to bankrupt them.” 

That’s right. Shabazz intends to “bankrupt” the city of Ferguson. So out of all this tragedy, destruction and erosion of a once-proud municipality, we have a lawsuit that will make things…worse. Not only does Shabazz expect, I presume, to generate a decent legal fee from this litigation, he expects these damage claims to have the impact of putting Ferguson essentially “out of business”. So how does that help the local residents, businesses, the disenfranchised of Ferguson and other non-litigious protesters from Michael’s neighborhood? For the few plaintiffs who may actually be awarded damages, they’ll likely come out alright. Everyone else, however, beyond those who have already suffered greatly at the hands of looters (who almost certainly won’t be making any reparations or paying damages to those they hurt), will, instead, lose city parks, recreational facilities, street department services, lighting, the municipal library, etc., if Mr. Shabazz’ strategy prevails. Ferguson not only may be unable to provide services to its residents, but may have to terminate scores of city employees. This plan to bankrupt Ferguson, to essentially teach them a lesson, if successful, will ultimately leave the city in shambles, and will cause far more harm to its residents than it could ever help. And, of course, Mr. Shabazz and the other opportunists from out of town will be long gone by then, off to the next media circus that offers a chance for publicity.

Show me on TV and I’ll Sue!!!

Every once in a while you hear about a lawsuit that someone has filed which constitutes a real head-scratcher. The kind that makes you wonder where our http://www.dreamstime.com/royalty-free-stock-photo-couple-watching-tv-image24768815legal system is going. This week we were treated with a lawsuit filed by a man, Andrew Rector of New York, who was caught by ESPN cameras sleeping during a baseball game, and who feels he has been defamed because the announcers found that funny and commented about it. He seeks more than $10 million in damages from ESPN, its announcers, the New York Yankees and Major League Baseball.

I’ll be the first to admit that while I love baseball, there are times when the games move slowly, get a little boring or tedious, and I have also nodded off at a few, only to be elbowed by my wife to keep me from dribbling mustard on my clothes from the hot dog I hold in a death grip during my little snooze. If I had ever thought that there might be money in such trips to dreamland, however, I’d opt for seats in a more camera-friendly location of my local stadium.

What I think Mr. Rector and his attorney should consider before pursing this litigation much further is just how often we are all seen on video each day. Every person now sports the technological equipment in their hand to videotape every fight, argument, fall, stumble, arrest, nose-picking, earwax sniffing, wardrobe malfunction, and yes, sleeping incident, and they do so, and post them all to You-Tube constantly. Is ESPN more liable because they disseminate their video as part of their “for profit” business? I don’t think so. The fact of the matter is that when we step outside, we have essentially abandoned our “expectation of privacy”. If ESPN had not captured Mr. Rector’s nap, but someone else had done so on a cell phone and uploaded it to You-Tube, who becomes liable for his “damages” then?

Most sporting event tickets have a disclaimer on the back warning the attendee that he/she may be injured by thrown or batted balls, flying pucks or golf balls, etc. Must they now add a disclaimer that reminds those attending sporting events that, because virtually every sporting event is televised, they run the risk of actually being SEEN by others on television? In fact, isn’t that attention what most of the nuts waving at the camera behind home plate and elsewhere in the stadium actually lust for and seek out?

Mr. Rector claims that by disseminating his unseemly appearance snoozing through the game, with a comment or two about his activity (or lack thereof), it subjected him to “character and reputational” injury, and caused him loss of earning capacity. Seriously? We have been treated in recent years to late night TV hosts showing congressional aides sleeping or picking their noses behind senators during various hearings, Morgan Freeman drifting off during an interview, a news reporter’s on-air gibberish from a possible stroke, and even Vice President Biden apparently napping during a speech by President Obama. Do all of them have a claim for monetary damages because these videos were made public? If they do, and if a claim such as Mr. Rector’s is allowed to be pursued, we have entered a new era of civil litigation that is likely to overwhelm our legal system with unending lawsuits.

But at least if I trip on someone’s sidewalk, I can always hope that somebody catches it on camera and promotes it, thereby affording me the opportunity to seek compensation for my reputational damage due to my own clumsiness, if not for my actual physical injuries themselves…

What Would Cousin Dudley Do?

dudleyWatching the “Harry Potter” movies with my kids allowed me to reach the proud parental conclusion that my kids, even at their worst, were far removed from the heinous behavior of Harry Potter’s cousin, Dudley. A child who could demand more birthday presents even after being showered with every toy the department store could hold, and who could get away with complaining constantly about everything, in spite of having it all, probably stands as the modern definition of “spoiled brat”.

Then along came Rachel Canning, the 18 year old high school student from New Jersey, who recently sued her parents, seeking that they be ordered to provide her financial assistance with her education (tuition at the private Catholic high school she currently attends, and then her college tuition thereafter), along with her current living and transportation expenses. From the pictures of Rachel on the internet, she does not appear to be someone who has ever wanted for much. The wrinkle in this story is that Rachel left her parents’ home voluntarily. The debate is whether she left because she didn’t want to follow her parents’ house rules (do some chores, abide by a curfew, etc.) or because she felt “abused” by name-calling and psychological mistreatment by her parents. From my perspective, the reason she left should not matter. She left. She is 18. Many a teenager over the years has begged for time to accelerate so that he/she could reach the age of 18, graduate high school or otherwise become emancipated from their parents. However, Rachel wants to the court to declare her “unemancipated”, since parents are not legally obligated to provide financial support for a child who is emancipated. New Jersey law does not consider a child to be “emancipated” unless they have left “the scope of his or her parents’ authority”. Seems like Rachel wants it both ways, i.e., the benefits of emancipation (freedom to do as one pleases) along with all the financial entitlement and support from parents of one who is not emancipated.

I don’t know if Rachel’s attorney is a parent or not. As one who is, my immediate reaction is that she can finish her last semester of high school in public school, since she has already benefitted from years of her parents having paid for a private education (although in the recent hearing on her suit, the judge noted that Rachel’s private school is not even making payment of her tuition an issue for her). Likewise, is she chooses to live elsewhere, one of the early life-lessons all people learn upon moving out on their own is that food, transportation, housing, etc., all costs money. If she were like the other millions of kids who will leave the comfort of their parents’ homes after turning 18 she’d have to pay those bills herself. Why not her? In her case, she has been staying at the home of one of her friends. Did those parents expect or demand payment? Apparently not. If they aren’t happy with the situation, they certainly have the right to throw her out.

Perhaps the most troubling, and as yet unresolved, issue in this case involves Rachel’s college tuition and expenses. The court denied her request for immediate financial assistance from her parents last week in a hearing, but tabled the issue of college tuition. While there may exist a “college fund” for Rachel that her parents established for their little darling when she was a toddler, does that entitle her to that money, now or ever? Unless she herself contributed some money from her own employment to date (why do I have a tough time picturing that?), what would actually prevent her parents from renaming the money otherwise set aside for Rachel’s college as their “Retirement Fund” or “Round the World Cruise Fund”? While colleges expect that students and their parents will pay the costs of a college education, I’m not sure that the waters have ever been tested in a situation where the parents and student involved are at loggerheads over who is actually responsible as between them. If a student applies, is accepted and then enrolls in a college and the parents won’t pay the tuition, unless they have signed off on any of the documents, are they legally liable? This particular case has the potential to set a dangerous precedent about what obligations parents have to provide for adult children who simply “want” something. We will have to see how this develops.

The only thing certain about the Rachel Canning matter is that their family holiday get-togethers in the future are almost certain to be tense affairs…

Silence is Golden


I often find myself frustrated when non-legally trained TV reporters use inappropriate terminology to describe legal issues. They will often report that “opening arguments start today” in some big trial. As attorneys, we all know that opening statements are not supposed to be “arguments”. Likewise, we frequently see reports of a plaintiff who “won a settlement” against a defendant. Settlements, of course, are not “won”, but are negotiated and agreed upon. In fact, in many cases, the defendant may feel that he or she actually “won” if the settlement achieved is particularly advantageous to them.

 Perhaps one of the most important reasons for settling a claim for the majority of defendants is the ability to resolve a case quietly, without publicity. That is why almost all settlement agreements and releases contain a “confidentiality” clause, which prevents the settling plaintiff (if not both parties) from discussing, publicizing or otherwise disclosing the terms of the settlement.

Some plaintiffs who believe they have achieved a good settlement may actually feel the settlement is some vindication of their position, and that they had, therefore, “won”. As such, they apparently don’t think twice about the confidentiality language in the release or agreement. That problem was illustrated by two cases recently in the news. In February, Mel Gibson’s “ex”, Oksana Grigorieva, apparently was sanctioned with the loss of half of the $750,000 settlement that she reached with Gibson following her suit against him over their break-up. Despite a confidentiality agreement in the settlement that barred her from discussing Gibson, she could not help appearing on Howard Stern’s radio show and taking pot-shots at her “ex”. The court apparently found that conduct in violation of the confidentiality agreement and ruled that she had forfeited the remaining payments due her on the settlement, which amounted to almost half the total figure.

More interesting was the report of an $80,000 settlement lost to a man who had reached a settlement at that figure after suing his former employer for age discrimination. His teenage daughter posted about the settlement on Facebook, noting that her father “won his case” and that the ex-employer was “now officially paying for my vacation to Europe this summer” (adding a final dig at the former employer with the words “SUCK IT” at the end of her post). The Florida Court of Appeals agreed with the employer that the plaintiff had clearly violated the confidentiality agreement and refused to force the employer to pay the plaintiff the $80,000 settlement figure.

Settlement agreements and releases entered into upon settlement of a suit or claim are contracts. Like all contracts, each side has obligations. It may be hard for an injured party who achieves a reasonable settlement to keep quiet about it, but they simply have to be carefully instructed on the consequences. Defendants settle to “buy their peace”, and that peace almost always includes the prevention of publicity, disclosure and information about the suit or claim and the ultimate settlement. These examples should prove very instructive to counsel who represent clients negotiating settlements of any type.

Think Like A Lawyer…

There’s an old expression, perhaps uttered by Elmer Fudd, that “to catch a rabbit, you have to think like a rabbit” (although Elmer would have pronounced it http://www.dreamstime.com/royalty-free-stock-photography-preparing-test-deconcentrated-student-isolated-white-image32362967“wabbit”). Maybe that applies to other scenarios as well. One might argue that “to become a lawyer, you should think like a lawyer”. That appears to be the approach being taken by one prospective law school applicant, Joan Hoyt, who has a diagnosed learning disability, and has therefore filed suit against Law School Admission Council (LSAC), the entity that administers the Law School Admission Test (LSAT), requesting several personal accommodations to make the testing fair to her, including extra time for the exam, a distraction-reduced environment, the use of a “white noise” machine and computer, and to be allowed food and drink during the test.

Surprisingly, Ms. Hoyt is not the first person to raise such issues over LSAT testing. A Texas man sued to be allowed extra time in 2009 to accommodate his ADHD diagnosis, and a New York woman also sought extra testing time in her 2011 suit based upon a disability causing her to read and write more slowly as a result of the removal of a brain lesion a few years earlier. At least two or three other suits along those lines have also been pursued within the past decade, seeking accommodations during the LSAT for what might be described as “non-physical” disabilities.

Lawyers themselves, over the years, have contributed greatly in the fight to allow people with disabilities and other needs to participate in events, activities, careers and opportunities that might have otherwise been closed to them. However, while few would argue that anyone should be prevented from pursuing their goals based on their race, religion, gender, ethnicity, etc., or that there is anything unfair about providing physical assistance to those who are blind, paraplegic, etc., one has to wonder where the line should be drawn over these “accommodations”. What is the next type of problem that warrants some special circumstance, equipment or adjustment in the test environment? In this case, should Ms. Hoyt be allowed extra time and a “white noise” machine because she has, as she claims, a generalized anxiety disorder and learning disability? And if so, will she be afforded those accommodations some day in trial, arbitrations, or contract negotiations if she is admitted to law school and ultimately pursues a career in law? In fact, it seems apparent to me that a certain amount of anxiety goes hand-in-hand with the practice of law on a daily basis. I would personally feel better and perform more successfully if I could listen to my iPod during trial to soothe me with relaxing New Age music through painful testimony and to pump me up Rocky-style before a vigorous cross-examination. However, I don’t expect my personal wish-list of accommodations to be available any time soon.

While I am completely sympathetic to Ms. Hoyt’s personal predicament, as well as those of the previous Texas and New York LSAT applicants, and hope they find a vocation that allows them great success, I suggest that perhaps a line of work other than something as stressful as the practice of law may be more suitable for them. Then again, I suspect many clients already wonder if it isn’t a job prerequisite for a lawyer to have a certain amount of brain damage, attention-deficit or anxiety disorder as it is. Perhaps Ms. Hoyt is on the right track after all.

Air Travel Injury — The Tray Table Coffee Spill

http://www.dreamstime.com/royalty-free-stock-image-breakfast-plane-fruit-small-bun-juice-tea-passenger-tries-tea-teaspoon-image30423496Once again, an incident in which someone claims injuries from a coffee spill is making the news. Ms. Lourdes Cervantes filed suit last month against United Airlines, related to a cup of coffee that spilled on her during a flight in 2011.

The most famous “coffee spill” incident in history is likely the one that lead to the lawsuit filed by 79 year old Stella Liebeck against McDonalds following burns she suffered in 1992. That case actually served as the inspiration for the title of this blog – but not because I believe it to have been frivolous (my friends in the plaintiff’s bar are quick to point out that Ms. Liebeck’s injuries were actually quite severe and that her claims were very legitimate, and there have been numerous articles, videos and investigative reports since that time to support that position). Instead, I used that case because of the very fact that for nearly 20 years it has served as the flashpoint for every debate about what actually constitutes frivolous litigation. In Ms. Liebeck’s case, various tales and urban legends exist regarding how she was burned – some claim she held the cup between her legs as she was driving, while others suggest that a family member was driving and bounced a pothole as she tried to add creamer, etc. Ultimately, what truly came out of that suit was discovery of the fact that McDonalds’ coffee was REALLY HOT…perhaps hotter than coffee made in other establishments and general residential coffee pots, etc.

Since Ms. Liebeck’s suit, I suspect everyone has seen the warnings which McDonalds (and likely many other such entities) now put on their coffee cups, noting that the product or liquid therein may be “VERY HOT” and to exercise “caution”, etc. Notwithstanding the injuries Ms. Liebeck suffered, it still seems odd to many that a restaurant should have to actually warn people that a drink created to be enjoyed hot is actually HOT. Reading such a warning on the cup might make the average person say “duh”…

In the new suit by Ms. Cervantes, she claims that while on an international flight on Continental Airlines (now part of the United system) in 2011, a flight attendant put a cup of coffee down on Ms. Cervantes’ tray table, after which the passenger in front of her reclined his seat, causing her coffee to spill and burn her. In her case, however, she has sued under a 1999 treaty (the Montreal Convention) related to international air travel that essentially makes an airline strictly liable for injuries a passenger may sustain on a flight, but limits the awardable damages. It does not appear that under this treaty Ms. Cervantes will have to prove the airline’s negligence, which is a good thing for her, since I’m not sure I see the negligent conduct of the airline, and she sure can’t sue the schmuck in the row in front of her.

Were it not for the ability to pursue a “strict liability” claim under the aforementioned treaty, it would appear that Ms. Cervantes’ case ignores the realities of air travel. Anyone who has ever flown knows that a plane bounces around in the air like a roller coaster, and that putting anything on a tray table is fraught with risk. Planes in flight actually go both upward and downward, thereby changing the angle of the trays, I presume to the surprise of no one. I have had plenty of beverages (including coffee) that were on a tray table spill in flight, and that little indentation in the tray table that is supposed to “hold” a cup is of little use. Moreover, tray tables are almost smaller than a laptop computer footprint, and those of us who work on planes know that we have nowhere to put our beverage while trying to type. The fact remains that we are packed in a long aluminum tube like sardines, with seats as close to the one in front of you as the airlines can get them. As a result, when the big guy in front of you reclines (and he is bound to do so), your tray table will move, and you are likely to be staring right at the back of his head only a few inches in front of your face. Likewise, finding a tray table that actually sits rigidly parallel to the floor is rare. Most appear to be off kilter or have a bracket or arm on one side that is a little looser than the other, etc., and they generally are too ricketty to bear much weight as it is.

The bottom line is that it is hard to believe that anyone would be surprised that something might spill during a flight. And quite frankly, in my experience, I’ve never even been served anything other than lukewarm coffee on any flight anyhow. While I take Ms. Cervantes’ claims about the injuries she suffered as true, I can only wonder whether a jury would actually find in her favor if she could not benefit from the 1999 treaty to pursue her claim. Otherwise, this type of event screams “assumption of the risk” to me. Because given the fact that you are bound to hit turbulence with a drink on your table, if the airline has to pay damages for for every spill that occurs, I surmise that air travel is going to take another step away from the luxurious days gone by, and the simple beverage service and peanuts we now receive in flight will be the next thing to go.

When we run out of things that might spill on us in flight, perhaps the next wave of litigation will be over the cold or flu we contract due to the fact we all have to share the same virus and bacteria-infested air with others in that long, tight tube.

The Blushing Plaintiff — Weisberg v. Lancome

Products that don’t live up to their hype, i.e., their marketing schemes, are a dime a dozen. The whole point of advertisements and statements like “new and improved” is to get people to buy the product. We all want to believe the pitch, but most of us realize there is a little “spin” involved. Does anyone truly believe that if you slap on Aqua Velva cologne that you’ll be fighting off supermodels who throw themselves at you? Yet some people must take these sales pitches and marketing ploys VERY seriously. A lawsuit was recently filed against make-up manufacture Lancome, alleging that their “24 hour” make-up didn’t actually last 24 hours.


The suit, filed April 30 in the U.S. District Court for the Southern District of New York, was brought by Rorie Weisberg, an orthodox Jewish woman who contends that she purchased this product to get her through the Sabbath, since she cannot apply (or re-apply) make-up from sundown Friday night until Saturday evening…hence the “need” for a 24 hour make-up. When I first heard of her suit, I presumed that some unfortunate event must have befallen her sometime during her Sabbath period or religious services she may have attended (perhaps her make-up streaked or made her look freakish, leading to expulsion from her house of worship), causing her to suffer some significant damage. In fact, however, she claims to have “tested” the product on a Thursday, and that it was “cakey”, and her nose was shiny by Friday morning. Therefore, she apparently chose not to even use the product that night for her planned Sabbath primping. So what gives?

While I do not claim to know much about women’s make-up, much less the importance of make-up during the 24 hour Sabbath period in the Jewish religion, I was surprised that this “problem” with Lancome’s product could have been this significant. Surely the plaintiff had been dealing with Sabbath make-up issues weekly for many years? Ultimately, the true problem revealed itself when I wiped the mascara off the lawsuit and learned that it is actually just another class-action suit, seeking millions in “damages” for unsuspecting consumers who didn’t get a full 24 hours out of their make-up. As I addressed in an earlier article related to a class action suit against Anheuser-Busch over the alcohol content of their beer, I don’t think we’ll really see a solution from this litigation for poor Ms. Wiesberg’s problem in particular. For that, perhaps she should find out what the women who worked with Jack Bauer in “24” used – they never seemed to have time to re-apply make-up, but always looked their best.

If the suit fits…

http://www.dreamstime.com/stock-images-handsome-black-boy-child-baggy-business-suit-image23110144Although I think the most quoted line from Shakespeare is probably “To be or not to be”, I surmise that the most popular is “The first thing we do, let’s kill all the lawyers” (Henry the Sixth). Where one might be cautious about telling religious, ethnic or dirty jokes at a social gathering, garnering laughs at the expense of lawyers seem to be universally accepted. What causes society’s general disdain for our profession (ranked above only “used car salesman” in many polls of the least trustworthy occupations)? One need only look to a recent law suit filed in New York.

According to the Daily News, a Manhattan attorney named Robert Ginsberg filed suit against Brooks Brothers for $7,646 over having apparently been given the wrong suit. It seems Mr. Ginsberg bought a suit (for $646) for which some alterations were to be done before he was to take it home. He did so in January, but apparently did not open the garment bag until March, and found that it was NOT the suit he purchased, but was a simple blazer and slacks, and several sizes too big. He claims he tried to return the suit to the store but they would not accept it or refund his money. Now in defense of Mr. Ginsberg, anyone who is given the wrong item in such a situation would likely be upset, and if the store refused to accommodate you, filing a small claim action might even be a viable option. In this case, that would be a claim for the $646 out of pocket. But Mr. Ginsberg also sought $2000 for the 90 minutes he “wasted” arguing with the Brooks Brothers staff. That’s a hell of an hourly rate, and one that we aren’t likely to see in the Midwest until another 100 years of inflation has come and gone. Moreover, he sought $5000 in “punitive” damages. As most people know, punitive damages are to punish a defendant for egregious conduct. Really? Does he think Brooks Brothers personnel meticulously planned this devious bait and switch? They gave him the wrong suit by accident…something that we would have realized the same day if he’d taken a look in the bag when he got home (assuming his time was too valuable to glance at the alterations in the store before leaving).

Lest you think that perhaps Mr. Ginsberg just got overzealous this one time, he also was in the news in the past when he sued American Airlines for having allegedly been “pushed” by a flight attendant into a food cart that he couldn’t squeeze past in the aisle of an airplane. In that case he purportedly sought $2 million. I guess that event must have wasted a lot more than 90 minutes of his time.

For a lot of attorneys,  business is slow these days. But trying to generate business as a result of one’s own ignorance isn’t likely to be a successful practice niche. And another oft-quoted adage is “a man who is his own lawyer has a fool for a client”.

Seeing Shadows…and Future Lawsuits

In the news recently was a story about an attorney who brought “charges” against poor Punxsutawney Phil, the groundhog whose sole claim to fame is being dragged out of a cage (theoretically, his “burrow”) once a year on February 2nd, where some local bigwig in a top hat declares whether or not Phil has seen his shadow. Per folklore, if the little rodent “sees” his shadow, another 6 weeks of winter can be expected, but if he does not, then spring should arrive early.


This year, after Phil supposedly did not see a shadow, thereby forecasting an early spring, large portions of the country were nevertheless pounded with severe winter weather. In spite of Phil’s historical accuracy rate of less than 40%, the unending snowdrifts led Butler County (Ohio) prosecutor Mike Gmoser to prepare legal pleadings to have Phil indicted for “misrepresentation of spring” thus committing a felony “against the peace and dignity in the state of Ohio.” It seems that most people appreciated the humor in that (it was a joke, after all), and to date nobody has made a stink about Gmoser using county supplies or wasting government time and expense to generate this harmless prank. However, one has to wonder if this will plant a seed in the minds of more litigious individuals. Will someone decide to actually sue a weatherman? Believe it or not, there is precedent… A few years ago, a woman in Israel sued a weather forecaster who predicted a sunny day, which turned out to be incorrect. Claiming that she had dressed for dry weather, she alleged that she got sick from being soaked in the rain, and had to expend funds to buy medication to treat her flu-like virus. And she WON.

While I have no expertise about the Israeli legal system, if one can recover monetary damages for a weather forecaster’s incorrect prediction, what is to stop people from suing not only weather forecasters, but those who predict the outcome of sporting events, races, award shows, elections, etc? The “injuries” one might allege simply for having prepared for a weather forecast that turns out wrong would hardly seem to support much of a damage claim. But what of those who “invest” large sums to bet on the 49ers in the Super Bowl, only to incur huge losses when the Ravens won? Can they sue the prognosticators who suggested that the 49ers were a good bet? Some internet entities charge sports addicts a fee to offer advice on which teams to take, what point-spread can be overcome, and offer an almost certain “pick of the week”, etc. People gamble huge sums of money based on these supposedly well-informed predictions, and still LOSE. Does that, or should that, expose them to legal liability for their predictions?

And what of all of the political “experts” who predict which candidate will carry a state or a district? If they predict a landslide and the results are close, could they be sued for dissuading a political party from investing time and resources in the area, and potentially turning an election? Perhaps these experts are employed by the party itself, which wouldn’t sue its own employee. But what of a bitter local resident, who feels that the voter turnout could have been higher were it not for the negligent projection that their chosen candidate couldn’t win that district? The damage claims could include emotional distress, an increased tax burden, loss of individual freedoms, or whatever other social change is delivered by the “wrongly” elected winner of the vote.

Making decisions based upon someone else’s “predictions” is fraught with peril. Perhaps it is only because we know that such predictions aren’t a guarantee that people refrain from suing over them. But we should be cautious of the slippery slope that may arise even from a satirical suit against poor Phil. It wouldn’t take much for a creative plaintiff to consider taking the next step. Then all of the world’s forecasters and prognosticators will have to start hiding in their own respective burrows.