Today is the day I push to complete the remaining *cough* 10 hours of Continuing Legal Education. Streaming video is my friend under these circumstances. I can sit here, blog a little, learn a little, clean my desk, etc.

For your information, because I know you care, here are the following classes I'm taking today (and maybe tomorrow morning):

*Evidence & Objections: Laying Foundations for Introducing and Raising and Rebutting Evidence (2 hours)

*The Irving Younger CLE Series: Hearsay (Younger was a legend of the trial bar) (3.5 hours)

*Inadvertent Disclosure: I Didn't Mean to Read It, I Forgot What It Said - Can I Stay in the Case? (2 hours of ethics credit)

*What Every Lawyer Should Know About LLCs and LLPs (4 hours)

Can you feel the excitement? Is it crackling over your internet connection?

Posted by: Random Penseur at 11:30 AM | Comments (2) | Add Comment
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1 Actually, the LLCs and LLPs are something I've been curious about. Can I sit in and 'splain it to ya later?!

Posted by: Tuning Spork at November 29, 2004 09:38 PM (A6e6g)

2 Wow, you read the whole post! Maybe, as a reward, I'll email you some of the materials for the course.

Posted by: RP at November 30, 2004 08:51 AM (LlPKh)

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Proximate cause is a legal concept that you find in tort cases and in securities fraud. It is a requirement that there be a causal link between the wrong alleged and the damage caused. It is sometimes thought of as the "but for" test. But for the actions of the defendant, plaintiff would not have been damaged. Here is a not very illuminating definition.

In any event, I saw in the New York Law Journal today, a story about proximate cause that really caught my eye. I quote (because I don't know how long that link will be good for):

A piece of grilled shrimp flung playfully by a Japanese hibachi chef toward a tableside diner is being blamed for causing the man's death.

Making a proximate-cause argument, the lawyer for the deceased man's estate has alleged that the man's reflexive response -- to duck away from the flying food -- caused a neck injury that required surgery.

Complications from that first operation necessitated a second procedure. Five months later, Jerry Colaitis of Old Brookville, N.Y., was dead of an illness that his family claims was proximately caused by the injury.

But for the food-flinging incident at the Benihana restaurant in Munsey Park, N.Y., Colaitis would still be alive, attorney Andre Ferenzo asserts.

"They set in motion a sequence of events," he said.

Alleging wrongful death, Colaitis' estate is seeking $10 million in damages. The complaint includes claims for pain and suffering and loss of consortium.

Benihana has denied all of the complaint's material allegations. In other papers filed with the court, defense attorney Andrew B. Kaufman also questioned whether Colaitis was trying to avoid the flying shrimp or catch it in his mouth.

* * *

When the chef flipped a piece of shrimp at Colaitis, he allegedly ducked away, injuring two vertebra in his neck. Doctors reportedly told Colaitis that if he did not have corrective surgery, another injury to the same disks might leave him paralyzed.

The first operation was in June 2001, six months after the Benihana dinner. A second procedure was performed two weeks later.

In succeeding months Colaitis developed a high fever and problems with his breathing and memory. He died in a hospital five months after the second surgery, on Nov. 22, 2001.

A contributing cause of his death, Ferenzo said, was a blood-borne infection. Justice Mahon's decision also listed respiratory failure and renal failure as causes of death.

Neither side has sought to add the doctors or hospital where the surgery occurred, New York University Medical Center, to the case. Colaitis died at St. Francis Hospital in Roslyn.

Arguing for partial summary judgment, defendant's attorney Kaufman challenged the plaintiff's ability to prove proximate cause. In court papers, he said that Benihana cannot be liable for Colaitis' death because of a break in the chain of causation between the first or second procedures and his death five months later.

"Essentially, as the plaintiff's decedent died of an unidentifiable medical condition, the plaintiff will be unable to establish that any alleged negligence by Benihana proximately caused his demise," Kaufman wrote.

In denying defendant's motion, Justice Mahon held that whether the tableside events caused Colaitis' death would best be resolved at trial.

I think that the defendant has a pretty good argument here and I am shocked that no one has brought the hospital in. Unless, of course, he did not die from any malpractice. I don't know about this one. Interesting issue.

UPDATE:

Thanks so much for the link from Robert at the Llama Butchers! After you linked, Robert, I went ahead and did a little legal research (2 minutes and 40 seconds, according to Westlaw, actually), and I include below a discussion of the concept of proximate cause from a very recent opinion. So, click on Extended Entry if you want to see what the Hon. Herbert Kramer has to say about the concept in connection with a case involving Philip Morris, cigarettes, and the issue of comparative fault. The case is called, FRANKSON v. PHILIP MORRIS INCORPORATED, 4 Misc.3d 1002(A), 2004 WL 1433008 (Sup. Ct. Kings Co. June 24, 2004). more...

Posted by: Random Penseur at 12:43 PM | Comments (6) | Add Comment
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1 I'm just glad he didn't die from a ruptured bowel. Coilitis...bowels... Ah, foo. Another 6 months in purgatory.

Posted by: Jim at November 23, 2004 03:20 PM (tyQ8y)

2 Sokay, Jim. I've got a reserved Party Table in Hell. Pack light. The express train is crowded. Oh, and Jim? BIFURCATE BIFURCATE BIFURCATE! Vicarious liability? I love it when my husband talks "radio talk" to me. Do you and Robert talk tort reform to your significant others? Inquiring minds wanna know. 0 )

Posted by: Margi at November 23, 2004 06:19 PM (MAdsZ)

3 No, Margi. I stick to "tart reform" with the Lovely Wife. I think I'm not a fan of proximate cause. In both of the vehicle cases there I would have decided against the driver. If you know the car is broke it is your responsibility not to drive it until it's un-broke. If you do drive it then it's your bad. If you are drunk and drive into a utility pole you are responsible for whatever happens. Period, end of story. Guess I'd make a lousy judge. Probably a decent magistrate though.

Posted by: Jim at November 24, 2004 09:48 AM (tyQ8y)

4 I think you'd hate being a Magistrate, Jim. Mostly, they hear discovery disputes. That is not the height of intellectual excitement. No, I see you more as an appellate judge, telling the trial judge he was wrong! Margi, I almost never talk law to my wife. She is not a lawyer and she usually doesn't permit that kind of language in the house!

Posted by: rp at November 24, 2004 10:03 AM (LlPKh)

5 I have always said that I would SUCK as an attorney because I can see both sides of an issue. Case in point: while working for an immigraion attorney, I researched, composed and filed a brief with the INS on behalf of a gay Brazilian citizen. The brief was in support of an Asylum claim. Basically, I was asserting persecution on the basis of sexual orientation. I sweated that decision more than any other in my (addled) memory. Why? Because anyone with half a brain would argue that if hate crimes against people of alternative lifestyles was persecution, then, by God, we got enough of that right here in the good ol' US of A. The ONLY thing in my favor? The Immigration Judge we were appearing before was the only judge (at the time) to grant asylum based on sexual orientation. Did I mention that my client won?! That was one of the best days of my entire life (the birth of my children notwithstanding). Anyway -- not sure where I was going to go with this but I wanted you all to know that I'm not ALL about the double-entendre. ;o) xoxo

Posted by: Margi at November 24, 2004 03:45 PM (MAdsZ)

6 We know that you are not always about the double entendre, no matter how good at it you may be. You ought to be proud of that result. I'd be proud, too.

Posted by: RP at November 26, 2004 04:44 PM (X3Lfs)

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These deposition excerpts courtesy of the blog Margi turned me onto some time ago. Thanks, Margi! I thought they were very funny.

The following exchanges were in depositions of bitterly contested divorce suits:

Q. Isn't it a fact that you have been running around with another woman?

A. Yes, it is, but you can't prove it!

....

Q. Did you ever stay all night with this man in New York?

A. I refuse to answer that question.

Q. Did you ever stay all night with this man in Chicago?

A. I refuse to answer that question.

Q. Did you ever stay all night with this man in Miami?

A. No.

....

Q. Isn't it true that on the night of June 11, in a prune orchard at such and such a location, you had relations with Mr. Blank on the back of his motorcycle?

(there was a complete sentence for about three minutes; then the wife replied.)

A. What was that date again?

....

Q. What was the nature of your acquaintance?

A. Oh, there wasn't no nature to it, nothing like that, at all. No nature to it. We were just friends, that's all.

Posted by: Random Penseur at 02:42 PM | Comments (1) | Add Comment
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NY State, in its infinite wisdom, has decreed that I must accomplish 24 hour credits of Continuing Legal Education (CLE) in order to renew my license to practice law every two years. It is a self reporting system. Theoretically, they can audit you but I've never heard of it happening. No matter, I will comply because I can't actually contemplate signing my name to a false affirmation that I did comply. And if I could contemplate doing so, no amount of CLE is going to make a difference. Certainly not the 4 hours of ethics. I figure that if you make a knowingly false affirmation, you are beyond the help 4 hours of ethics can provide.

One nice thing is that I can do it by way of streaming video over the internet. I am picking among the following interesting (said with no irony at all, that's how pathetic I am) looking classes:

*Evidence and Objections: Laying Foundations for Introducing and Raising and Rebutting Evidence

*Credibility and Cross Examination by Irving Younger (A giant of the trial bar)

*Hearsay (also by Younger)

*Nuts and Bolts of New York Appellate Practice

*Summary Judgment in New York: A Review

*Avoiding Professional Malpractice

There are also some good bankruptcy programs on asset protection.

I look back on this list and I weep with the knowledge that I am actually looking forward to a little evidence refresher. How reduced I have become.

Still, as for a bright spot, at least I am not in Minnesota, where:

The Minnesota Supreme Court issued an order making ethics and diversity training mandatory for Minnesota attorneys. As of July 1, 1996, lawyers licensed in Minnesota are required to take three hours of ethics courses and two hours of elimination of bias training as part of the 45 credit requirement to keep their attorney licenses up to date.

The University of Minnesota allows you to meet this requirement with this kind of silly course:

ENGL 3741: Literacy and Cultural Diversity 4 credits

Meets CLE req of Citizenship/Publ Ethics Theme; meets CLE req of Cultural Diversity Theme

Description: Through reading, writing, and community action, this course examines the function and variety of literacies in contemporary U.S. culture. Readings in literary, sociological and pedagogical theory, imaginative literature, autobiographies and memoirs, will engage students with the idea of literacy. By working in community organizations, students will enter into the complex practices of literacy among young school students or adult learners, with long-time citizens as well as newly arrived residents from Africa, Mexico, South Asia, and elsewhere. Reading across history and culture, but with a special emphasis on the vexed case of U.S. literacy, we will think about inscription and exclusion, the politics of power and knowledge, institutions and disciplines of literacy and literature, about race and schooling, about migration and disapora [Ed. comment: SIC!!! This is so stupid that they cannot even spell DIASPORA. It's DIASPORA, you idiot!!! There, I feel better now and return you to the course description], and about the possibilities for renewed and revolutionary literacies. Readings may include works by Paulo Freire, Michel Foucault, Pierre Bourdieu, Franz Kafka, Frederick Douglass, Zitkala Sa, Nuruddin Farah, Theresa Hak Kyung Cha, Myung Mi Kim, Anne Fadiman. As part of the course, students commit to 2 hours a week of literacy work (broadly defined) in a local community organization. A one-day literacy training session, usually scheduled for a Saturday early in the semester, along with a variety of on-site trainings, will help students prepare for their community work.

Class Time: In addition to course work, a 2 hr/week service commitment off-campus

Work Load: Assignments will include a reading and reflection journal, a literacy autobiography, several short writing assignments, an in-class presentation, and a final project.

I'm sure that the clients of Minnesota are better served by lawyers who can fight their way successfully through bull shite like this. 100% sure, I am.

As this blogger points out, the real problem is that there is really only one stream of ideology that qualifies for inclusion in this curriculum. Guess which one? If you guessed conservative, you're wrong! The lawyers in Minnesota have tried to litigate this requirement and lost.

I guess I'm grateful for the small favor that if I have to take CLE, at least I can pick professionally useful classes and am not required to pay someone for the privilege of brainwashing.

Back to evidence!

Posted by: Random Penseur at 09:29 AM | Comments (2) | Add Comment
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The first day of trial has finished. In preparing for this and attending the first day, we have billed over 400 hours of time. Is it any wonder that high stakes ($30 million in asserted liability) corporate litigation is too expensive for ordinary civilians to conduct on anything but a contingency fee basis?

In any event, the judge has great animus for our client and, by extension, us. This is the same judge I got in a fight with before (here for story). She is hypertechnical, snide, rude, and not too swift. She is creating an appealable record. In other words, she is making errors with her evidentiary rulings. This is the kind of thing that an appellate court can seize on to reverse a final determination. As for snide, she actually over-ruled an objection by saying, "maybe I'm just not as smart as you are". Astonishing sarcasm from the bench.

I think that generally there has been an irretriveable breakdown in the civil relationship between the bar and the bench. Judges and lawyers are just downright more hostile and mean to each other. I really don't know why. I suppose I have some guesses, but there really is no excuse at the end of the day. Moreover, judges who are rude are abusing their position, I feel.

Trial is an odd thing. Its billed as a search for truth. Its more like a formalistic dance between skilled lawyers who try to thread their way through, or impede their opponent from doing so, a complex thicket of evidentiary rules designed to protect the fact finder from unreliable information. The Rules of Evidence are fascinating, archaic, and a trap for the unwary. We're pretty good on them at my office and can often use them to trip up the other side. The judge has an obligation to follow them but only if you call the correct rule to his/her attention at the correct time. This is a situation of make the correct objection in a timely manner or have it be deemed waived. Once the information is in evidence, and thus been accepted as reliable, you can argue from it to your heart's content. This includes, by the way, documentary evidence.

All documents are, by their nature, out of court statements usually offered to prove the truth of the matter they assert. Thus, classic hearsay. Sometimes more than that. Sometimes the document may also report on what someone else says. Say its a memorandum of a telephone conversation. Then the memo is hearsay and contains hearsay within hearsay, or double hearsay. You need an exception, and there are a lot, to each level of the hearsay objection or else the document isn't coming in. At another trial some time ago, I made the hearsay within hearsay objection and kept out of evidence a whole series of memoranda and caused opposing counsel to actually get so angry that he began jumping up and down. It was . . . sublime. In fact, that lawyer then complained to the judge that he let in all of my similar documents and the judge responded that the fellow didn't object at the time and he was not now, at the end of trial, going to revisit every one of his evidentiary rulings. A very satisfying moment, indeed.

So, maybe trial isn't really a search for truth but a search for reliable information upon which a fact finder can make factual findings based on, among other things, the credibility of the source of the reliable information. Plaintiff is still putting on its case here and the fact finder, in this case it is the judge, is judging the credibility of plaintiff's witnesses. By and large, so far, they look credible. We'll see what happens when we reconvene next month. Next month, you may ask yourselves? Yes. It is a bench trial so it goes in dribs and drabs, starts and fits, whenever the judge has an odd bit in her calendar and can fit us in. Then we do post-trial briefs, proposed findings of facts, post-trial motions, etc. and she makes her decisions.

It was a long day and has been a long couple of weeks.

Yesterday was also my wedding anniversary. I called my wife to wish her a happy anniversary and said, has it really been 11 years? And she said, yes, and they have been the happiest 3 years of my life. Zing!

I was on the 8:40 train home last night (early for this week, actually) and it broke down in Pelham. They evacuated the whole thing and, happily, had another train to us in less than 15 minutes but it was not fun there for awhile.

I am off to the wine store shortly to buy something fun to drink. Tonight, we light a fire in the fire place, drink wine, and put on the first episode of To Serve Them All My Days. I cannot wait.

Posted by: Random Penseur at 12:33 PM | Comments (8) | Add Comment
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1 HAPPY ANNIVERSARY!!!!!! I hope you have a lovely evening. Sorry it happens to be in the middle of trial. With the nutbar of a judge....

Posted by: Elizabeth at November 05, 2004 01:42 PM (ehQxN)

2 Happy Anniversary!

Posted by: JohnL at November 05, 2004 02:46 PM (YVul2)

3 A very happy anniversary! 11 years, that is so wonderful. What is the 11th anyway? The popcorn anniversary? Origami? Screw it. Wine works for every one of 'em.

Posted by: Jim at November 05, 2004 04:26 PM (tyQ8y)

4 As a juror in a first degree murder trial, I was very, very happy to get the juror instruction that says if a witness can be shown to have lied on one part of the evidence, you can throw out all the rest of his testimony. That had a big bearing, though not the only factor, on a verdict of not guilty in this case. It seems to me that rules like that make things a lot easier, whether or not they prove absolute truth. But as you said earlier, you're not going to find absolute truth in a courtroom.

Posted by: John Bruce at November 05, 2004 05:50 PM (AtiUs)

5 Wow... sounds kind of cut throat, to be honest. Then again, I'm having major problems with a cynical world. Anyway, hope you enjoyed your time in front of the cosy fireplace... always a good way to feel better!

Posted by: Hannah at November 06, 2004 07:17 AM (7dELN)

6 Congratulations, Random! Astonishingly close, our anniversaries. Freaky thing! ;-)

Posted by: Mick at November 06, 2004 01:42 PM (VhRca)

7 RP, based on the Judge's conduct it sounds like its a darn good thing your building up a good appellate record. Is this a jury or bench trial? You may have mentioned that before but I missed it. In any event, good luck and hope you had a great anniversary. Ivan

Posted by: ivac at November 06, 2004 05:55 PM (xy2ZU)

8 I hope you had a wonderful anniversary. Maybe it is good in some ways that the trial comes in dribs and drabs; you get some breather between entries into the lions den.

Posted by: Rachel Ann at November 08, 2004 01:52 AM (OnNyU)

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