I will see you in court!!

If you observed a situation where you felt someone was in imminent danger, would you get involved? What if you knew your actions could expose you to liability and eventually a lawsuit?  Surprisingly this can and does happen. It is no secret that the American society is litigious. From lawsuits that point the finger back at a good Samaritan, to those that blame corporations for something as crazy as alcoholism, our court system is commonly used to assert frivolous claims in hopes of a settlement. Most lawsuits that are filed never get close to a trial, nor are they expected to. In fact, 95% of all civil suits are resolved through settlement. Settlements are costly for those directly involved and they pose heavy costs on society.  Doctors, contractors, auto insurance carriers and many more, pass these costs onto the consumers through increased prices. People that normally would step in when they see something happening are discouraged to do so for fear of liability.  It appears as though the US civil litigation system is perpetuating this problem, and could stand some reform.

Does a plaintiff face any consequence if they have made false allegations?

There are federal rules that attempt to address this situation. FRCP Rule 11 allows a judge to sanction any attorney, or unrepresented plaintiff that is found to have violated the requirements under Rule 11.  See Frantz v. U.S. Powerlifting Federation. The fact is these sanctions are not issued often and many believe this rule is ineffective.  There are loopholes that provide opportunities for a plaintiff or plaintiff’s attorney to simply withdraw or amend their complaint to avoid sanction. Since the rules inception, attempts have been made to increase the bite of Rule 11 and encourage judges to impose sanctions.  The most recent attempt was in 2017, bill H.R. 720 known as the Lawsuit Abuse Reduction Act of 2017.  This bill proposes a requirement that any sanction provided by Rule 11 violation must also compensate the injured party.  It also withdraws the provision in Rule 11 that allows withdrawal or amendment of the violating document.  This bill is currently awaiting vote in the Senate.

Does a defendant have any recourse?

Being faced with a lawsuit is both a serious and stressful situation. Even if the claims in the complaint are false, a defendant is required to afford the effort and cost of asserting their defense. Under the US Federal Rules of Civil Procedure, all that is necessary to begin the civil litigation process, is for a plaintiff to file their complaint.  From the moment a defendant is served, the clock starts ticking and costs start to incur. The US legal system applies the American Rule, which basically says each party is responsible for their own expenses that are associated with a lawsuit. Attorney’s fees and other costs incurred are not recoverable for a defendant unless otherwise provided through contract, state law or statute. The defendant is forced to incur the expense of a defense, with very little chance of recourse for having been put through this process, regardless if it has any merit.  

Conclusion

While it is understood our forefathers set up our legal system to provide citizens with easier access to the courts, it appears there are some unintended consequences. Our court system is the appropriate place to address legitimate issues or disputes, but due to the overwhelming number of cases that are filed, they rarely see the inside of a courtroom. To address the issues I have raised, I would recommend some reform to the civil litigation process.  Changing the “American Rule” to what is known in the UK and other countries as the “loser pays rule” would help in deterring a plaintiff from pursuing a frivolous lawsuit. The proposed changes under the Lawsuit Abuse Reduction Act of 2017 are certainly a good start, but would it help to also implement some pre-suit rules? Rules that require a plaintiff to submit documentation to support the plausibility of the claims made in the complaint?

Up for discussion:

Is FRCP Rule 11 being enforced and accomplishing what it’s intended purpose was?

Do you feel changing the “American Rule” to the “loser pays rule” would be effective in deterring a plaintiff from filing a baseless lawsuit? 

What are your thoughts regarding requiring a plaintiff to perform formal pre-suit discovery to support the allegations made in the complaint that is filed with the court? 

Sources and additional reading:

https://thelawdictionary.org/article/what-percentage-of-lawsuits-settle-before-trial-what-are-some-statistics-on-personal-injury-settlements/

https://www.policeone.com/legal/articles/473729006-Good-Samaritan-who-shot-cops-attacker-faces-lawsuit/

https://law.justia.com/cases/federal/district-courts/FSupp2/153/1358/2433483/

https://www.law.cornell.edu/rules/frcp/rule_11

https://www.casebriefs.com/blog/law/civil-procedure/civil-procedure-keyed-to-babcock/rule-11-of-the-federal-rules-of-civil-procedure/frantz-v-u-s-powerlifting-federation/

https://www.congress.gov/bill/115th-congress/house-bill/720

https://www.quimbee.com/keyterms/american-rule

https://pdfs.semanticscholar.org/ed61/18532203295c45099d8f672ad7f395cc6784.pdf

Jury Bias: Powerful. Perilous. Preventable.

Introduction:

State and federal courts have become deciders in cases that can alter laws and carry their influence for generations. Prominent cases have included segregation, women's rights, or more recently firearms and immigration. These court decisions are often met with debate, individuals on both sides may disagree with a judge or jury’s ruling. More and more individuals are losing faith in the American judicial system, one of those aspects being the growing disbelief in the jury system, and rightfully so.

The Tales of a Biased Jury: Mr. White is not so white:

The morning of August 11, 1979, an intruder broke into a Manchester, Georgia home then beat and raped the resident, a 74-year-old woman. After the violence, he took her cash and left. At the crime scene, investigators found a pubic hair that was thought to be the intruders. Fast forward six weeks after the incident and Mr. John Jerome White (a 25-year-old African-American) was arrested on drug charges (unrelated to the previously mentioned incident). It was decided last minute to include him in a police line-up

Police line-up where White was identified as intruder/attacker,
when all along the guilty man was standing right next to him.

where the previously mentioned rape victim identified him as the intruder/attacker. She selected him stating, she was “almost positive” he was the attacker. Although she witnessed later that there was very little light in the apartment and she was not wearing her prescription eye wear, White was still convicted and sentenced, where he served more than 22 years in prison before DNA testing (with the hair) proved his innocence and led to convicting another man who actually had committed the crime [1].

Layers of the Jury Onion: it makes me cry:

Blame or finger pointing is not necessary when it comes to a case like this. The identification from a line-up was one of the best options at the time. However this could raise some potential biases regarding jurors. Research suggests that the race of both the victim and the defendant will influence sentencing, one study found that defendants with more stereotypical “black features” were more likely to be sentenced to death [2]. The sentencing could have resulted with harsher results due to the bias in regards to the victim. The jury members’ sympathetic tendencies (the natural tendency to feel sympathy for any rape victim, but especially one that is 74 years old!) led them to look beyond the “guilt beyond a reasonable doubt” standard and ignoring key points such as, an “almost positive” identification, little light in the victim’s apartment, and obscured vision. 

Racial bias, although significant, is not the only bias found in juries. There are also some theories that state juries could be harsher on heavier and “less attractive” witnesses. This discrimination could be happening either consciously or subconsciously [3]. A study performed indicated the attractiveness of the victim (and even the defendant) both influence decisions made by jurors [4].

A jury has also been accused in a case for providing the death sentence instead of life in prison after learning the defendant was a homosexual, on their "unofficial speculation" that he would "enjoy" being locked up with men and it would not be a sufficient punishment [5].

The (Im)possibilities of De-biasing:

With these biases (both conscious and subconscious) are juries able to decide cases based on the facts and the law? There are de-biasing techniques being studied to disrupt these stereotypes, such as:

·      Exposure to counter-stereotypes (positive images of African-Americans, like Martin Luther King and negative images of white Americans, like Jeffrey Dahmer).

·      Creating more diverse judicial benches and juries [6].

Whatever the solution may be, it is evident that these jury biases are not in alignment with the objectives that the American judicial system wants to accomplish.

Discussion:

Do you disagree with my claims that John Jermone White had a biased jury? Or do you believe there was enough evidence, based on what was available in the late 1970’s, to convict him?

Do you think these jury (and I’ll expand this to judicial benches as well) biases create an “unfair” treatment of parties within a trial?

Do you think it is getting into the gray area to apply this type of cognitive psychology (counter-stereotyping) to law?

What would be the best way to diversify a jury?

There is something called “virtual trials” that is a proposed solution where jury members would not be able to see any skin colors, or “attractiveness” levels to eliminate bias. What do you think of that?

What are some other options to improve the bias situation within a jury, or in general, the courtroom?

Sources: 

[1] 

The National Registry of Exonerations: John Jerome White

[2] 

Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes

[3] 

Criminality and Corpulence: Weight Bias in the Courtroom

[4] 

Jury Bias: Attractiveness of Defendants & Victims

[5] 

Charles Russell Rhines v. State of South Dakota

[6]

The Washington Post: The U.S. court system is criminally unjust

Someone to Watch Over Me

How do you like them Apples?
As the “internet of things” expands in power and scope, concerns build about individual privacy and the potential consequences of “smart” technology for due process as we know it. Industry giant Apple and its coveted, leading-edge product line are predictably at the forefront of the controversy.

Jailbreaking...but not the kind they probably hoped for

Law enforcement cannot compel a person to recite the combination of a safe [1] whose contents might incriminate him or her, but what about the passcode to a mobile phone [2]? What about iPhone’s facial-recognition mechanism for access? If your face is the key with which you unlock your device, how can that be private information? Should an officer need your permission [3] to use your face? How about unlocking a device [4] with your fingerprints? Your fingerprints themselves, after all, are not private information in the eyes of the law [5]. And if you’re dead – can investigators use your cold, dead fingers? In the case of one defendant, they sure tried [6] -- with about the same luck any of us has on a cold day. (Maybe they should just make their own lifelike replicas of your cold dead fingers [7]!)

Settled law, disruptive technology

In 2014, SCOTUS ruled unanimously in Riley v. California that police who seize a mobile phone upon arrest cannot, under most circumstances, conduct a warrantless search of the device’s ESI. [8] Seizure, in this case, is not unreasonable, but searches generally still require a court order, or “exigent circumstances,” a phrase whose meaning they clarified in their Missouri v. McNeely decision the previous year [9]. Local police may continue to push that envelope, and citizens under arrest will not always be well-equipped to push back.

And each time the law catches up to the state of the art, technology finds a new way to outpace it.

The popular Apple Watch Series 4 adds a new level of complexity to this dilemma, with its built-in capability to dial 911 on behalf of a wearer who has fallen and is unresponsive, and to transmit the wearer’s GPS location to dispatch, if certain false-alarm failsafe protocols are not activated [10]. This might appear, on its face, to be little more than a modern-day version of the LifeAlert button (“I’ve fallen! And I can’t get up!”). But the LifeAlert system is purpose-specific: no one wears it without knowing it does this. A typical Apple Watch user could be unaware of the device’s capability to communicate information to first-responders; the function seems almost ancillary to the other myriad things the watch can do.

The wearer could also be unaware of a crucial limitation on his or her Fourth Amendment Rights, to wit: the community caretaking exception [11], which allows police to enter private property if they believe emergency assistance is needed. This clause creates the potential for timely lifesaving aid to be rendered when a person in grave danger is incapacitated. It also has the potential for misapplication or abuse.

D***it, Janet!

Suppose, in your haste to get to work, you leave your Apple Watch on the dresser. Your beloved ferret, Janet, finds it. She carries it around for a while, looking for a nice place to hoard it, but as she schleps her way along the tops of your kitchen cupboards, a sneeze overtakes her, and she drops the watch from her teeth. Apple Watch sensed movement until now, and now it has detected a “fall.” It blares an alarm and prompts you with response options: whether you fell or not, whether you’re OK. Only, you’re not there to respond. Your ferret scurries back along the shelves, knocking down a cookie jar, and finally she hides in the spice rack while the alarm blares for several more minutes. Police arrive as they would on a standard “welfare check” [12]. They knock on your door, and, hearing no response, they break in. They find no casualties, of course, save for the blaring watch on the kitchen floor...and your massive stash of weed, in the shards of the cookie jar Janet smashed during her hasty retreat.

That hypothetical may be far-fetched, but there are countless, less-cartoonish permutations of this scenario, with potentially life-changing implications. Although the Series 4 has this emergency alert function as an “opt-in” feature, few users are likely to weigh the benefits against the risks of said opting. The admissibility of evidence obtained under such circumstances may come to be a subject of rigorous debate.

Are you OK? Please respond.

Reflection questions for the class:

• What are the Fourth and Fifth-Amendment rights at stake if an Apple Watch “narcs” on its owner? Can the contents of your broken cookie jar be seized and used as evidence against you?
• What pros and cons do you see if Apple allowed users to program an emergency contact known to them personally, in lieu of 911 dispatch?
• As our “smart” devices implement more and more biometric security features, how else might other technological advances (such as 3D-printed prosthetics) play a role in their subversion?

Sources and further reading

[1] Doe v. United States, https://caselaw.findlaw.com/us-supreme-court/487/201.html
[2] “Florida Man Jailed for Refusing to Disclose Smartphone Passcode,” The Washington Times. https://www.washingtontimes.com/news/2017/may/31/christopher-wheeler-florida-man-jailed-for-refusin
[3] “Can Cops Force You to Unlock Your iPhone with Your Face?” Findlaw. https://blogs.findlaw.com/blotter/2018/10/can-cops-force-you-to-unlock-your-iphone-with-your-face.html
[4] “The government wants your fingerprint to unlock your phone. Should that be allowed?” LA Times. http://www.latimes.com/local/california/la-me-iphones-fingerprints-20160430-story.html
[5] “Fingerprints: The First ID” FindLaw. https://criminal.findlaw.com/criminal-procedure/fingerprints-the-first-id.html
[6] “Yes, Cops Are Now Opening iPhones with Dead People’s Fingerprints.” Forbes. https://www.forbes.com/sites/thomasbrewster/2018/03/22/yes-cops-are-now-opening-iphones-with-dead-peoples-fingerprints/#69ebba13393e
[7] “Michigan police 3-D printing murder victim’s finger to try to unlock his phone.” Rawstory. https://www.rawstory.com/2016/07/michigan-police-3-d-printing-murder-victims-finger-to-try-to-unlock-his-phone
[8] Riley v. California. Bloomberg Law. https://www.bloomberglaw.com/public/desktop/document/Riley_v_California_No_13132_and_13212_US_June_25_2014_Court_Opini?1539112343
[9] Missouri v. McNeely, Oyez. https://www.oyez.org/cases/2012/11-1425
[10] “Apple Watch’s new auto-911 calls after falls may tumble into legal trouble.” Arstechnica. https://arstechnica.com/tech-policy/2018/09/how-the-new-apple-watch-will-call-911-after-a-fall-if-you-want-it-to 
[11] United States v. Cervantes, USCourts.gov. http://cdn.ca9.uscourts.gov/datastore/opinions/2012/05/16/09-50521.pdf
[12] “What is a Police Welfare Check?” Black’s Law Dictionary. https://thelawdictionary.org/article/what-is-a-police-welfare-check/

Moonlight in California

Moonlight in California

US vs. Sierra Pacific Industries, Inc.

I could have stopped the fire, but I was high…

On September 3, 2007, at approximately 2:00 pm, U.S. Forest Service employee Karen Juska arrived at Red Rock Tower in Plumas and Lassen National Park in the California Sierra Nevada mountains to relieve the previous watchman.  Juska found said watchman standing on the tower’s catwalk, peeing on his bare feet.  Not far away from the tower, Juska found a marijuana pipe and the employee she was taking over for smelled like pot.  Shortly after this fun little incident, a fire would start that would ultimately scorch just under 65,000 square miles of protected California forest. This fire would be known as the "Moonlight Fire."

We didn’t start the fire

U.S. and California authorities (hereafter known as Cal Fire, or the plaintiffs) investigated the fires and determined that Sierra Pacific Industries was at fault.  This was based on the discovery of two Sierra Pacific bulldozers working in the area that Cal Fire determined was the origination point of the fire.  Authorities theorized that one of the bulldozers struck a rock, causing a spark which then started the fire.  They claimed they had the testimony of one the bulldozer drivers that corroborated this theory. (Ahem…spoiler alert…they did not.)

A mighty flame followeth a tiny spark

Investigators failed to note the appearance of Ryan Bauer, who was cutting firewood nearby with an illegally altered chainsaw.  In fact, Bauer had false alibi, which was that he had been at his girlfriend’s house all day instead of in the forest with his chainsaw. They also failed to prove the origin-and-cause report’s point of origins.  Later investigation by the defendant proved that the points of origin (which proved the plaintiff’s bulldozer-hitting-a-rock theory) were incorrect. The Cal Fire investigator who placed the point of origin flags conveniently couldn’t remember anything about the point of origin discrepancy because he destroyed all his notes. Whoops!

Oh no, you didn’t!

Despite some concerns about some fraudulent discovery they found out about on the part of the plaintiffs, Sierra Pacific agreed to a $55 million settlement while protesting their innocence.  Sierra Pacific was pressured into the settlement: the plaintiffs had threatened them with a $1 billion lawsuit.  The federal settlement did not include state action, and while the state action was pending, Sierra Pacific found out about more instances of misconduct with the federal court case.  Discovery no-nos like “’false testimony, spoliation of critical evidence,’ and abuses that had ‘permeated nearly every single significant issue in the case.’”

Ha! In your face Cal Fire!

On the state court level, the state court voted in favor of Sierra Pacific, stating that they found “misconduct so ‘deliberate’ and ‘egregious’ that ‘any remedy short of dismissal’ would be ‘inadequate.’”  The state court dismissed Cal Fire’s case against Sierra Pacific.  An appellate court would later affirm the dismissal based on the discovery misconduct of Cal Fire.

Wait, hold up!

Sierra Pacific then moved to have the federal settlement dismissed based on the preponderance of evidence that the plaintiff had committed deliberate misconduct (under Rule 60(d)(3), which alleges fraud on the court). Problem was, the motion of alleged misconduct was with the U.S. Attorney’s office.  The U.S. Attorney’s office was in daily contact with…wait for it…judges in the Eastern District of California.  The Chief Judge on the Ninth Circuit directed each judge on the Ninth Circuit to consider recusal individually due to a possible conflict of interest.  Only one actually did it. 

‘Cause he’s a life ruiner.  He ruins people’s lives.

One the judges, Judge Shubb, heard the petitioner's motion.  He determined that Rule 60(d)(3) did not apply to Sierra Pacific’s situation.  He stated that because Sierra Pacific did know about some of the fraud prior to the settlement, Rule 60(d)(3) didn’t cover it.  The Rule only applied to after-discovery fraud.  So even though Sierra Pacific learned more about the discovery fraud after settling, it didn’t count because they knew some of it before.  Additionally, Judge Shubb decided that the after-discovery fraud that Sierra Pacific found out about wasn’t that big a deal.

And the hits just keep on coming

The Ninth Circuit affirmed Judge Shubb’s decision.  They also felt like Judge Shubb did a fine job and there wasn’t any need for him to have recused himself. (By the way, there is a whole other issue with Judge Shubb tweeting about this case which I don’t have time to get into here but it is very interesting.  Read the articles linked below for more information.)  After the Ninth Circuit’s decision, Sierra Pacific was invited to submit a Writ of Certiorari to the Supreme Court for October 2018’s session.  They were denied.

Up for discussion

First, what do you think about Judge Shubb’s decision? Did Cal Fire commit fraudulent activity?

Does Rule 60(d)(3) only apply to after-discovery fraud or can it include pre-trial fraud?

Despite being threatened with a $1 billion lawsuit, should Sierra Pacific have gone to trial, knowing there was some fraudulent activity on the part of Cal Fire?

What are the implications of this ruling for individuals and small companies rather than a gigantic company like Sierra Pacific?

Should there be some protections in place for fraud no matter when it’s discovered?  What would be the advantages/disadvantages of this?

Sources and for more information on the case:

A Wildfire of Corruption

DOJ Urges Justices to Pass on Judicial Tweeting Issue

Prosecutorial Fraud Arrives at the Supreme Court

Above the Law to the Supreme Court

Writ of Certiorari

Ninth Circuit Court of Appeals

Rule 60