April 2009 Archives
One conversation I never had with my kid over dinner: "So, honey, anything happen in school today?" "Yeah, I got strip-searched."
I'm not sure what all the signs of the Apocalypse are, but right after Pestilence and Famine has got to be Antonin Scalia providing the majority for a pro-defendant 4th Amendment decision.
Slim pickings -- only a dozen or so cases. A lesson (actually two) for appellate lawyers in the necessity of reading the journal entry you're appealing from, the fact that the old line "just when you think you're out, they pull you back in" applies to prison, too, and a reminder that the "plain feel" doctrine describes more than my college dating philosphy are on tap this week.
Nothing from interest out of Columbus, except for the usual spate of disciplinary decisions, like this one, which helpfully informs us that if you're going to forge a judge's signature on a journal entry granting occupational driving privileges, you need to come up with a better excuse than "I wanted to show my client what one looked like."
The US Supreme Court was a good bit more active, coming down with the decision in Arizona v. Gant, which I'll discuss on Wednesday, and holding oral arguments in several key cases, such as one involving the strip-search of an 8th grader, which I'll discuss on Thursday. There are still several key cases which were argued last fall, and could come out at any time, including the one involving the FCC's "fleeting expletives policy," discussed here, and the case concerning whether Crawford v. Washington applies to laboratory reports, which I discussed here. And SCOTUSBlog has some interesting stuff on whether the 2nd Amendment, as interpreted by the Court last year in District of Columbia v. Heller, will be applied to states and localities: the 9th Circuit held that it should be, and there's a case out of New York involving nunchakus, of all things, where cert is being sought.
It's been two weeks since the last update, so there's a lot of court of appeals stuff to wade through. Let's get to it...
Retro Week here at the Briefcase is almost over. Got the briefs done, and next week we'll go back to a full schedule, which will include a look at the Gant decision, the oral argument in the Supreme Court case on strip-searching school students, and the possible ramifications of its decision earlier this year in Oregon v. Ice to consecutive sentencing in Ohio.
One other decision the Supreme Court made this year was to close the chapter on the Phillip Morris case, where a smoker's family in Oregon got an award which included $80 million in punitive damages. The Court had reversed the case twice before, but finally allowed the verdict to stand on state law grounds. Here was my post about the case's first trip to the Court, back in October of 2006:
Today's Moment of Duh comes courtesy of the plaintiff's decedent in the case of Phillip Morris v. Williams, scheduled to be argued soon before the US Supreme Court:
Jesse Williams rationalized about the dangers of smoking cigarettes for more than 40 years. In part, he trusted the tobacco companies when they said that the link between smoking and lung cancer had not been proved. But when Williams was diagnosed with inoperable lung cancer in 1996, he told his wife Mayola, "Those darn cigarette people finally did it. They were lying all the time."
Williams died, and his widow filed suit against Phillip Morris; in 1999, a jury awarded her $820,000 in compensatory damages and $79.7 million in punitive damages. The Oregon Supreme Court, citing the tobacco companies' lengthy history of "reprehensible conduct," upheld the judgment. Now it's on to the Supreme Court, which a few years back ruled that punitive damage awards have constitutional ramifications. In that case, a doctor was awarded $4 million because of a lousy paint job on his BMW, and the Court threw it out, saying that an award of that magnitude for that minimal an injury violated due process.
I'm not going to get into that. As the article I cited at the top of this post points out, despite the wailing and gnashing of teeth to the contrary by the "tort reform" lobby, awards of punitive damages are extremely infrequent. And I'm certainly not going to shed tears for the tobacco industry, the executives of which should be whiling away their time trying to figure out which particular circle of Dante's Inferno they'll be consigned to upon their demise.
But with all due respect to the Widow Williams, anyone who in 1996 doubted the link between cigarettes and cancer probably believed that the Lung Fairy would come and take his damaged one away and bring him a new one.
See, this is the problem that lawyers have. We know all the arguments. If someone says that punitive damages are a problem, we can point to how infrequent such awards are. When newspapers write articles about the medical malpractice crisis, a few days later there are letters in the forum section from lawyers pointing out that the insurance companies are raising their premiums not because of out-of-control malpractice awards but because of their losses in the stock market. When someone at a party mentions the McDonald's coffee case, a good lawyer can point out the salient facts -- McDonald's had hundreds of prior complaints about how hot its coffee was, the woman was horribly injured, she offered to settle for her medical expenses -- between sips of his Cabernet.
And it doesn't really matter, because we think like lawyers and people think like people, and it's not the same thing any more. Most people know that if you drive with a cup of hot coffee in your lap, it's quite possible for bad things to happen. Most people figured out long before 1996 that cigarettes are bad for you. Most people don't buy the argument that somebody's too addicted to do anything about that, because there are literally tens of millions of people who've decided that they wouldn't smoke any more, and stopped doing it. Most people know that getting up on a ladder can be dangerous, and most people know that sticking your hand in a lawnmower while it's running not only makes you Captain of the Dummy Team, but can cost you several fingers.
Most people, in other words, still retain a concept of personal responsibility. I don't think we, as lawyers, do. In fact, the concept of personal responsiblity has become something close to anathemic for us, because we've spent the better part of the last few decades broadcasting a simple message: if something bad happens to you, (a) it's somebody else's fault, and (b) they should pay you money.
That's the main reason the public has trouble with lawyers. They see us rushing to find new ways to perform modern-day legal alchemy -- turning misery into gold -- by continuing to expand the horizons of liability beyond anything which would have been vaguely recognizable even thirty or forty years ago, and they don't see that as always being good for society.
And you know what? They've got a point.
Well, that certainly hit a sore spot. Last week, I highlighted the 8th District's decision in State v. Ollison, affirming a 3½ year sentence for a 76-year-0ld Korean War vet who'd fired a shotgun at someone who'd been harassing him, hitting the "victim" in the back of the leg with three small pellets, resulting in injury so grievous that the latter's medical treatment consisted of EMS coming out and telling him to rub dirt on it, then have his mommy spray something on it when he got home. Judge Sean Gallagher reluctantly agreed with the result, but wrote a concurrence blistering the prosecutor's office for not offering Ollison a deal.
Time for another retro post. Every now and then, instead of providing insightful analysis, I regale my readers with an episode from my own experiences in what most observers have concluded is a thoroughly undistinguished legal career. This post, from January of 2008, recounts one of them.
If you happen to need advice on how to prepare a jury in voir dire for the fact that your client's a transvestite, I'm the go-to guy there.
Had to take time out for this breaking news. This morning, the Supreme Court released one of the most significant 4th Amendment cases in the past several years. Arizona v. Gant, which I discussed back here, involved the question of whether the police can search a car incident to the driver's arrest, if the driver has been removed from the vehicle and is sitting, handcuffed, in a police car. Surprisingly (to me at least), the Court affirmed the grant of the motion to suppress. Even more surprising was the lineup: Scalia and Thomas joined Souter, Ginsberg, and Stevens in the majority, while Breyer and Kennedy joined Alito and Roberts in dissent.
You can read the decision here. I'll have a full post on it later this week or early next. The regular weekly 8th District roundup is below this post.
A real live post this time. No lifelines to civil attorneys who haven't learned the rules, a split in search and seizure decisions, and three dissents in criminal cases, doubling the amount for the entire year. That, and some reminders to trial judges not to get too cute, are on tap this week down by the lake.
Yep, it's time to stroll down Memory Lane this week at the Briefcase. Because of those two nasty briefs still lingering on my desk, as I mentioned on Friday, I'm only going to have time for one, maybe two "real" posts this week. (Looks like one of them will be tomorrow's regular feature, "What's Up in the 8th.") Instead, I'm going to be reposting some of the stuff I've done over the past three years, some topical, some not. First up, let's take a look at some pictures of nekkid women. Well, one, at least.
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