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Friday Roundup

Bullshit lawsuit of the week.™  Okay, you're on a business trip, you come out of your room, and there's a USA Today just outside the door.  You pick it up, figuring it'll give you something to read while you're eating breakfast.  It's only later when you're checking out and you happen to glance at your bill that you see the hotel has added a 75-cent charge for the paper.

So what do you do?  Well, if you're a non-confrontational weenie like me, you'll probably figure you're out 75 cents and that's the end of it.  Or maybe you'll grow a pair, march down to the hotel desk, and berate the management for charging you for something you did not request and, unless they had a bellhop stationed outside your room doing surveillance, have no proof that you received.

And that's the problem with you and me:  we don't think big.  If we did, we'd file a Federal class-action suit against the hotel.  And to show that our suit wasn't motivated by simple greed -- that of ourselves as lead plaintiff, to say nothing of our attorneys who will share in the bounty -- we would show off our ecological bona fides by throwing in some stuff about how hotel guests may not be reading the paper anyway, which results in "offensive waste of precious resources and energy," a serious problem given that "deforestation caused by paper production is a matter of concern and worry in this state, country and worldwide."

It probably wouldn't surprise you if I told you this happened in California.

Wake me up when it's time for redirect.  As I've shuffled over this mortal coil, I've pondered many of the great metaphysical questions.  What is the meaning of life?  Is there a God?  If there is, why does he allow people to suffer in wars, famines, natural disasters, and by watching Rob Schneider movies? 

Well, it looks like I'll have to add another one:  How long do I have to sleep during a trial before getting hit with an ineffective assistance of counsel claim?

That was the question the 6th Circuit wrestled with in their decision last week in Muniz v. Smith, a habeas appeal in which Muniz claimed submitted an affidavit from a juror in his trial which read:

4. While the prosecutor was cross-examining Mr. Muniz, I glanced at defense table and was surprised to see that Mr. Muniz'[s] defense attorney [was] sleeping;

5. It was apparent to me that Mr. Muniz'[s] attorney was actually sleeping through a portion of his client's testimony.

It is probably not a source of pride to our profession that there is a substantial body of case law dealing with this precise subject, which is summed up by the Muniz court as foll0ws:  "the denial of counsel with presumed prejudice only occurs once counsel sleeps through a 'substantial portion of [defendant's] trial.'"  Muniz cannot meet this standard: 

The record shows that Muniz's attorney was not asleep for the entire cross since he objected near the end of the questioning. This is especially significant, given that the total cross-examination was fairly short, spanning only 26 pages of trial transcript. Muniz's lawyer therefore must have only been asleep for a brief period.

There's some consolation for Muniz, though:  he might not have been able to establish the prejudice prong under Strickland, but he did establish the deficiency prong:

Muniz has made a sufficient showing that the standard of conduct by his attorney fell below the objective standard of reasonableness. There is no suggestion in the government's brief, nor could there be, that Muniz's attorney fell asleep at trial because in his "reasonable professional judgment" it was the best course of action.

You can't make this stuff up. 

Makes me proud to be a lawyer.  Another shining moment for our profession comes courtesy of this email by lawyer Jeffrey Steinberger, sent to various TV producers (hat tip to The Agitator):

As a Celebrity Criminal Defense Attorney, Former Prosecutor, Law Professor, and Judge Pro Tem, Attorney [Jeffrey] Steinberger can provide expert legal commentary regarding any story involving any Celebrity Arrests, Conviction or Sentencing (i.e. Drug Rehab; Jail Time; Alternative Sentencing, etc.).

Attorney Steinberger is available to discuss all civil matters as well and any other legal matter not mentioned above.

Attorney Steinberger is able to take a position on either side of any case - defense or prosecution.

In Attorney Steinberger's 15 years of doing "hits" for all the major news channels, I have provided legal commentary for CNN, MSNBC, FOX News and ABC, NBC, CBS news networks, as well as CourtTV, Inside Edition, Access Hollywood, Entertainment Tonight, and Showbiz Tonight.

That ability to "take a position on either side of any case -- defense or prosecution" is so invaluable. 

Man bites dog, dog sues man.  Let's say that you come across a car accident, and pull the driver from the burning wreckage.  Oops.  Turns out he had a back injury, and as a result of your dragging him from the car, instead of waiting until EMS could arrive and put him on a backboard (or collect his body parts if the car had blown up in the meantime), he's been rendered a quadriplegic.  Relax; he can't sue you.  Under Ohio's Good Samaritan law, if you give first aid or other emergency care or treatment to someone suffering an injury or sudden illness, you're protected from suit by them unless your conduct is willful and wanton. 

But what if you got a nasty case of smoke inhalation as a result of your rescue attempt, which has damaged your lungs.  Can you sue him?

David Kelley and Mark Kinkaid of Marion, Ohio, are going to find out.  Back in March of 2009, they came across a burning SUV which had run off the road.  They scrambled down an embankment, wrenched the door open, and pulled out the driver, Theresa Tanner.  Just in time, too; Kelley said that "the flames were so hot when we got to her that her hair was melting to her head -- melting."  Tanner spent several weeks in intensive care.

Kelley and Kinkaid didn't come out of it unscathed.  Kelley, only 39, claims his lungs were so badly damaged from the smoke that he can't carry a laundry basket up the three flights of stairs in his home.  And when they found out that the reason for Tanner's "accident" was that she was trying to commit suicide, they sued, relying on the "rescue doctrine," a principle of tort law which holds that someone who negligently or intentionally places themselves in a position of peril may be liable for the injuries sustained by a person who attempts to rescue the imperiled person.

Not sure how I feel about that; I can see both points of view.  But the story sure doesn't give you the warm fuzzies, does it?


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