Nevada Legal Updates

The High Court Rules No Redress in Nevada Courts for Wrong-Doing in Georgia That "Affects" Persons in Nevada

noreply@blogger.com (Sheri Ann Forbes) — Wed, 26 Feb 2014 17:43:00 +0000

Today the United States Supreme Court reversed a ruling of the Ninth Circuit. In Walden v. Fiore, the Court held that “a court in Nevada may [not] exercise personal jurisdiction over a defendant on the basis that he knew his allegedly tortious conduct in Georgia would delay the return of funds to plaintiffs with
connections in Nevada.” The Court reasoned that “a plaintiff cannot be the only link between the defendant and the forum.” The Ninth Circuit held that personal jurisdiction in Nevada was proper because the defendant's allegedly tortious actions in Atlanta, Georgia affected persons with a “significant connection” to Nevada.
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ObamaCare and Spam (with apologies to Dr. Seuss)

noreply@blogger.com (Sheri Ann Forbes) — Tue, 01 Oct 2013 21:20:00 +0000

I am Ted, Ted I am.

That Ted I am, that Ted I am,

I do not like that Ted I am.

Do you like ObamaCare and Spam?

I do not like them, Ted I am,

I do not like ObamaCare and Spam

Would you like them Red or Blue?

I would not like them Red or Blue

I Would not like them with you

I do not like ObamaCare and Spam

I do not like them Ted I am

Would you like them in Congress?

Would you like them in the House?

I would not like them in Congress,

I would not like them in the House,

I would not like them Red or Blue,

I would not like them with you.

I do not like ObamaCare and Spam,

I do not like them Ted I am.

Would you like them if you crashed your car?

Take them, take them, here they are!

I would not if I crashed my car!

George Zimmerman, Back In the News: Are We Really Surprised?

noreply@blogger.com (Sheri Ann Forbes) — Thu, 19 Sep 2013 21:42:00 +0000

It isn't as if George Zimmerman has shown the best judgment throughout his notariety. If he made good choices, he wouldn't have found himself in the situation that resulted in Trayvon Martin's death. If he made good choices, Zimmerman wouldn't have been trying to deceive the trial court with his clandestine phone calls with wife Shellie regarding "Peter Pan."

It was bad enough that after his acquittal, Zimmerman visited the factory that manufactured guns like the one he killed Trayvon with and had himself photographed smiling in the factory. But are we now really surprised that a 911 call made by Shellie Zimmerman claimed Zimmerman threatened to pull his gun on his estranged wife and her father? It is only a matter of time before Zimmerman makes another poor choice that either lands him in jail or results in his death or the unnecessary death of another person.

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An Analysis of George Zimmerman's Not Guilty Verdict

noreply@blogger.com (Sheri Ann Forbes) — Thu, 18 Jul 2013 17:05:00 +0000

Many were shocked when it was announced that a jury of six women found George Zimmerman not guilty of all charges associated with the death of Trayvon Martin. However, it must be remembered that the jury had to follow the letter of the law in deciding Zimmerman's fate. At least one juror has come out publicly and stated that although she believed Zimmerman "got away with murder," that because she had to follow what the law stated, she was duty bound to find Zimmerman not guilty.

To say that Zimmerman "got away with murder" but was not guilty is a confusing statement to make. So what exactly was Zimmerman charged with, and how could the jury find him not guilty? First, the actual letter of the law in Florida, in pertinent parts, is laid out here, so the exact standards by which Zimmerman was being prosecuted can be undersood.

From the very beginning, Zimmerman admitted killing Trayvon. But Zimmerman claims the killing was in self-defense, or in legal terms was “excusable” or “justified.” These terms are legal terms of art that mean that a perpetrator will not be punished for an act that on its face is a crime if there is a good legal reason for its commission, such as self-defense or reasonable mistake. Essentially, a homicide is not a crime if it is justified or excused. Zimmerman's defense team ultimately declined to invoke the controversial stand your ground Florida law and thus did not seek to gain immunity from prosecution and civil suit. (Fla. Stat. 776.032).

The DA charged Zimmerman with second degree murder and the lesser included charge of manslaughter. At the close of evidence, the prosecution asked the judge to allow the jurors to consider third degree murder on the basis of child abuse.

The crux of the proof necessary for the charge of second degree murder (punishable up to life in prison), boils down to the commission of an "imminently dangerous" act "evincing a depraved mind regardless of human life." Premeditation is not necessary. Under Florida law, in order to prove that Zimmerman had a "depraved mind" the prosecution had to present evidence that he acted with "ill will, hatred, spite or evil intent." See Leasure v. State, 105 So. 2d 5 (Fla. App. 2012).

In order to prove manslaughter (punishable up to 15 years in prison), the prosecution had to present evidence that Zimmerman committed an intentional act that caused Trayvon's death. See Haygood v. State, 109 So. 2d. 735 (Fla. 2013). But if there is evidence for a legally sufficient excuse or justification, no crime was committed. Loosely speaking, the crux here is whether Zimmerman honestly and reasonably feared for his life at the time he pulled the trigger; in other words, whether Zimmerman's actions were reasonable given the circumstances. In deliberating, the jurors have to engage in Monday night quarterbacking.

The evidence that was presented in this case makes it a close call. There was certainly enough evidence to put Zimmerman on trial for the death of Trayvon, but the jury had a tough job. In my opinion, the most important result of this case is opening the national dialogue about the assumptions that are routinely and all too often unjustifiably made about young black men in general.

At the end of the day, whether Zimmerman committed a crime under Florida law was a close call. Perhaps the prosecutors didn't present their case well enough, perhaps the police did not gather enough evidence, or perhaps the jurors were not well-instructed on the law. I do believe it was a mistake for the prosecution to argue Zimmerman was a vigilante, purposefully acting as judge, juror and executioner. Either way, whether the evidence was enough to convict was ultimately up to the jury.

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OJ Simpson's Chances For A New Trial

noreply@blogger.com (Sheri Ann Forbes) — Thu, 23 May 2013 00:19:00 +0000

OJ Simpson's bid to get a new trial in his Nevada convictions for 19 various felony counts ranging from kidnapping, assault, robbery and the use of a deadly weapon, resulted in a five-day evidentiary hearing from May 13 to May 17, 2013, last week. Simpson's Petition was filed with the Clark County District Court over a year ago on May 12, 2012. Various witnesses testified, including Simpson himself, a first in any of his criminal prosecutions, and Simpson's trial attorney, Yale Galanter, whom Simpson claims was ineffective at trial, entitling Simpson to a new trial. At the evidentiary hearing, Galanter passionately denied any error or omission on his part during Simpson's trial.

Simpson's claim of ineffective assistance of counsel is not uncommon when convicted criminal defendants have exhausted all their appeals as of right. The claim is filed in the form of a Petition for a Writ of Habeas Corpus and is based on an allegation that the petitioner's Sixth Amendement Constitutional right to assistance of counsel was violated and thus unvalidates the petitioner's conviction. The petition must first be filed in the trial court. The standard for showing ineffective assistance of counsel rising to a level that violates a defendant's constitutional rights to such a degree that would require a defendant to obtain a new trial is set forth in the 1984 United States Supreme Court decision of Strickland v. Washington, as adopted by the Nevada Supreme Court.in the case entitled Warden v. Lyons.

Under the Strickland standard, in order to establish a claim of ineffective assistance of trial counsel sufficient to invalidate a judgement of conviciton, Simpson is required to denonstrate (1) that his counsel's performance fell below an objective standard of reasonableness and (2) that his counsel's errors were so severe that they rendered the jury's verdict unreliable. The Nevada Supreme Court has held that the severity of the errors must have prejudiced the defendant to such a degree that but for the errors, the verdict would probably have been differenct. According to Nevada case law, in deciding the petition the trial court need not address both components of the inquiry if Simpson makes an insufficient showing on either one.

The Strickland test is a high bar for a convicted defendant to overcome, and in Nevada, defendants' petitions have been denied even in cases where trial counsel admitted to embezzling large amounts of their clients' money, and in cases where a juror subsequently provided an affidavit indicating he witnessed the defendant's trial counsel sleeping during the trial. Statistically speaking, it is not likely that Simpson's petition will be granted, so we may see an appeal before the Nevada Supreme Court in the future.

Beware of Fraudulent Solicitations to Help Boston

noreply@blogger.com (Sheri Ann Forbes) — Wed, 17 Apr 2013 20:36:00 +0000

The Attorney General of Massacusets has issued a media release warning the public to be wary of solicitations for donations to help the victims of the Boston marathon bombing.
To read the AG's letter, click here.

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Ninth Circuit Takes Up Unique Nevada Voting Law

noreply@blogger.com (Sheri Ann Forbes) — Mon, 11 Mar 2013 19:31:00 +0000

Today, the Ninth Circuit Court of Appeal heard oral argument regarding the constitutionality of a voting law unique to Nevada. Nevada voters may choose to cast their ballot for "none of these candidates" in elections, though the choice cannot "win" the election.

The law has been on the books since the 1970's and was challenged last year by the Republican party as being unconstitutional. The Ninth Circuit blocked a ruling by United States District Court judge Hon. Robert Jones siding with the Republican party, allowing the ballot choice to go forward for the 2012 national election. Oral agrument took place this morning before a three-judge panel of the Ninth Circuit.

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Lawsuit Alleges George Zimmerman's Planned "Escape"

noreply@blogger.com (Sheri Ann Forbes) — Fri, 28 Dec 2012 21:21:00 +0000

On December 21, 2012, a civil lawsuit was initiated by CMR Associates, Inc., against George and Shellie Zimmerman alleging breach of contract.
The Orland Sentinel reports that the lawsuit is seeking payment in the amount of $27,000 for protection services allegedly rendered. According to the Orange Sentinel, the lawsuit also alleges an elaborate plan, cloak and dagger style, to whisk away and hide George Zimmerman from the public, including changing vehicles and clothes, and checking for GPS devices to throw off any surveillance by paparazzi or the public.
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A Plea to the Media in Light of the Newtown, Connecticut Tragedy

noreply@blogger.com (Sheri Ann Forbes) — Sun, 16 Dec 2012 02:21:00 +0000

Like so many of you this week, my heart is broken. The news of the terrible events from Friday that occurred at Sandy Hook Elementary School in Newtown, Connecticut have hit me hard. I cannot watch the news without openly crying, and I have yet to hug my own kids as they are away from me this weekend. There are simply no words to describe how any of us feel right now, except perhaps, incredulity as to the reason why this happened.

Ever since CNN set the standard during Desert Storm, the media gold standard has been to report the news as it is occurring. As you are all painfully aware, every media organization is on location reporting the details as they become known. This is the second most violent act of its kind, second only to the Virginia Tech mass shooting in April 2007. One question resonates regardless of which news team or which witness is being interviewed: Why? The shooter's actions, life, friends and family are being scrutinized to find the answer to that question on all our minds.

But, really, does it matter what the answer is? Does it matter why he did this? Is there any reason that could be uncovered that would make this tragedy any more bearable or less painful or any easier for our nation or the rest of the world watching to understand? No, there is not. It wouldn't matter if he was bullied as a child, or if his mother was a monster, or if he was mentally ill. So why bother ask the question?

It is human nature to try to understand, and it is what we do in the wake of a crisis like this one. So of course we ask the question and seek as much information and details as we can. But the shooter does not DESERVE our inquiry. He does not deserve our consideration that he had any reason, no matter how twisted, to commit this horendous act. He does not even deserve his NAME being mentioned or his face being shown, not by any of us, and not by the media.

My plea today, my request to the media is this: Make a conscious choice not to highlight who the people are who choose these evil acts. Report the details, but choose not to report the name, or show the face of anyone who chooses these acts. I can't help but believe that these shooters who do these horrible things do so not only knowing they will not come out of it alive, but also believing they will live on in infamy. Granted, I am no psychologist, but I believe the publicity only encourages the next nut job to carry out his insane fantasies. Let's make the choice as a society to stop giving them this immortality through infamy. Frankly, as much as I want to know the answer to "why," it is not worth giving the shooter what he sought.

ABC, CBS. CNN. NBC, FOX, and all other media outlets, PLEASE stop mentioning these people's names and showing their faces.

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The Oklahoma Supreme Court Should Have Read This Blog

noreply@blogger.com (Sheri Ann Forbes) — Mon, 26 Nov 2012 22:26:00 +0000

Apparently irritated at the Oklahoma Supreme Court, the United States Supreme Court today summarily reversed the Oklahoma Supreme Court decision incorrectly ruling that an arbitrator, rather than the court, must decide whether an arbitration clause in an employment contract was valid. See this blog's report of the United States Supreme Court's prior decision on this issue here.

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Mitt Romney’s “Binders Full of Women”: Why This Intended Boast Was Just Offensive

noreply@blogger.com (Sheri Ann Forbes) — Fri, 19 Oct 2012 18:37:00 +0000

As have many, I have also found myself thinking a lot about Presidential candidate Mitt Romney's "binders full of women" remark made during the Presidential debate this Tuesday, October 16, 2012. Besides the reportedly inherent inaccuracies of his statement, not to mention its characteristically “inelegant” nature, Romney’s remark has been bothering me on a more fundamental level.

The remark was in response to a question from a woman who asked Romney how he would "rectify the inequalities in the workplace" between men and women, specifically the 72 percent that women make of what men make for equal work. Not only was his answer non-responsive to her specific question, it appeared to show an opposite belief on Romney’s part that women are actually incapable of equal work to men in high level positions. Apparently, according to Romney, concessions must be made.

Romney’s answer potentially reveals three inaccurate, and, frankly, archaic beliefs. First: All women qualified to hold high level positions either have children they must take care of, or they would rather be a caretaker/homemaker than hold a high level position. Neither is an absolute: A) not all women have children—some choose a career over having children; B) last time I checked a biology textbook, it takes a man to have a child, so there are a lot of men in high level positions that have children too, so the need or desire for a flexible work schedule is not uniquely a female issue; and C) some women qualified for high level positions who have children also have partners (husbands or wives) who take on the primary childrearing and homemaking responsibilities, thus obviating the need for or want of a flexible work schedule.

Second: No men qualified to hold high level positions would ever want or need a flexible work schedule because they either do not have children or they have wives. See B and C above; and D) the assumption that between a father and mother that only the mother wants or needs a flexible work schedule to care for school-aged children is a tired assumption, and it is high time fathers are given the opportunities for a flexible work schedule in order to spend more time with their children and/or step up to the plate to take on more of that role.

Third: Women are simply not interested in holding high level positions, so it takes a man (like Romney) to coax them into the position by promising flexible work schedules. See A - D above.

Romney’s nonresponsive answer gives rise to more questions than it does to answer the woman’s question. For instance, did the women Romney hire take a salary cut for their flexible work schedule? Was the flexible work schedule offered equally to men and women in Romney’s cabinet? Did they have the same opportunities for advancement while on a flexible work schedule as the men? Were they given fewer chances for real responsibility just because they were on a flexible work schedule? Whenever there is a discussion of women doing equal work for equal pay, or the (very real) glass ceiling in the private sector, inevitably the conversation goes right to women’s childrearing/homemaking responsibilities. Although both issues do overlap in some places, the two are not inextricably tied together.

Receiving equal pay for equal work has nothing to do with whether a woman has children, because men have children too. Pay should be based on ability, not one’s lack of a uterus. And while a flexible work schedule is certainly a welcome alternative, it should not be something offered to, or utilized by, only women. There are plenty of really smart, qualified men who also want an opportunity to play a larger role in their children’s lives (Mitt even advocated “the benefit of having two parents in the home” during the debate), just as there are plenty of really smart, qualified women who should not only be offered the high level job, but who should receive the same pay as their male counterparts.

Apparently, Mitt did not, as he boasted, learn “a great deal” when he staffed his gubernatorial cabinet

Are Republicans Intentionally Disenfranchising Obama Supporters?

noreply@blogger.com (Sheri Ann Forbes) — Wed, 17 Oct 2012 00:01:00 +0000

As election day approaches, the courts are tackling various challenges to voter laws. Joining the recent decision by the Pennsylvania Supreme Court is the United States Supreme Court.

Yesterday, Monday October 15, 2012, the United States Supreme Court agreed to hear an appeal from the Ninth Circuit's April 12, 2012 decision to strike down Arizona's Proposition 200 requiring voters to provide proof of citizenship in order to register to vote. The Ninth Circuit Court of Appeal stated that under the National Voter Registration Act (NVRA), the states must "accept and use" the federal form to register to vote, which requires prospective voters to swear or affirm by their signature that they are a citizen of the United States. The Arizona law sought to require prosepective voters to produce proof of citizenship in order to register. The Ninth Circuit upheld Proposition 200's provision requiring voters to provide identification at the poll, but stated that the NVRA supercedes the requirement to provide proof of citizenship with the use of the NVRA voter registration form. The Court will not hear oral argument in this case until after the election, in early 2013.

In another voters' rights case, the Supreme Court today declined to stay a decision of the Sixth Circuit Court of Appeal affirming an injunction by the lower court preventing the 2011 revisions to Ohio Rev. Code s. 3509.03 from taking effect to stop voters from casting early ballots during the three days before the November 2012 general election. The Sixth Circuit held that the revisions to the statute were unconstitutional and blocked the revisions from taking effect. The state of Ohio applied to the Supreme Court for a stay of the injunction "pending the filing and disposition of a petition for a writ of certiorari." The Supreme Court stated simply in its order, "The application for stay presented to Justice Kagan, and by her referred to the Court is denied." It remains to be seen if the Supreme Court will ultimately grant certiorari to the State of Ohio, but this will also be decided after the November election.

If anything, this flurry of appellate activity surrounding voters' rights is an indication of just how close this election is expected to be. Every vote counts, and it appears the Republican strategy is to disenfranchise the citizens who are most likely to be a vote for Obama. If this sounds harsh or overstated, take a look at the words of Rep. Daryl Metcalfe (R-PA), or better yet, listen to those of Penn. Republican House Speaker Mike Turzai.

UPDATE (Oct. 17, 2012): See also this reported incident..

Perhaps the Republican theme is a fear of foreigners. In the 2008 election, it appeared to be the Birthers' fear that a foreign born President would be elected. That red herring had to be dropped in light of the fact that Mitt Romney's father was born in Mexico. In 2012, perhaps the fear is that foreigners are reelecting him.

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Everyone, and Now His Mother: The Latest of Zimmerman's Family & Friends to Speak to Media

noreply@blogger.com (Sheri Ann Forbes) — Tue, 09 Oct 2012 19:01:00 +0000

I have previously opined on this blog that George Zimmerman's supporters talking to the media are not helping his chances of acquittal at trial. Very few attempts at using the media by Zimmerman's family, friends and attorneysin defense of his actions have done anything but appeared to worsen public opinion against Zimmerman. On September 11, 2012, Mark and Sondra Osterman appeared on the Dr. Phil Show to talk about their friend George Zimmerman. The couple claimed that during Zimmerman's absence from public appearances following the shooting of Trayvon Martin, Zimmerman stayed in their home. This past Monday, October 8, 2012, Zimmerman's mother, Gladys Zimmerman, joined his brother Robert Zimmerman, Jr., on Piers Morgan Tonight on CNN and became the latest on the growing list of Zimmerman's family of friends who just can't seem to stay out of the media spotlight.

On the Dr. Phil show the Ostermans were perhaps the first of Zimmerman's camp to be interviewed that actually appeared to help Zimmerman's image. While Mark Osterman, a law enforcement officer, was very careful to never repeat what Zimmerman told him about the shooting incident (an extremely wise choice), Osterman stated, based on what Zimmerman told him and based on his knowledge of Zimmerman's character, that he believed Zimmerman did not break the law. What makes Osterman's statements particularly credible is that, recognizing hindsight being 20/20, if he had the chance, Osterman would advise Zimmerman to act differently on that tragic night. Perhaps more importantly, Osterman did not engage in the victim-blaming that so many others to have spoken to the media have done. He appeared thoughtful and insightful in his comments rather than the cavalier way in which others (including Zimmerman himself) have defendend Zimmerman.

Yesterday on Piers Morgan Tonight, Zimmerman's mother emphatically denounced the notion that Zimmerman is a racist. She stated she places her faith in the judicial system to find her son innocent. Gladys's comments, though unwise, may not have been damaging to Zimmerman's image. In contrast, Zimmerman's brother engaged in the same victim-blaming in which he has engaged from the beginning. While the Ostermans may have helped Zimmerman's image, the latest interview may be enough to erase whatever goodwill the Ostermans were able to garner for Zimmerman.

Steve Jobs the Visionary

noreply@blogger.com (Sheri Ann Forbes) — Sun, 07 Oct 2012 14:53:00 +0000

In 1983, Steve Jobs spoke at the International Design Conference in Aspen. His speech was about 20 minutes long with a question and answer session afterwards. Being that it was 1983, the only recording of the entire session is a cassette tape that recently surfaced. The entire recording was digitized and can be heard below.

Jobs was truly a visionary. The predictions he makes are spooky; not just because a lot of them are true, but because some of them have not yet come true and as fantastic as they may have sounded back in 1983, don't sound so far fetched to today's ear.

Following are three excerpts from his Aspen speech--taken word for ward--that struck me as particularly visionary.

On comparing the medium of communicating by telephone versus the new method of communicating by “electronic mail.

“ . . . [T]he most interesting thing that’s different Is the process of communication. When I talk on the telephone with any one we both have to be on the phone at the same time. When I am working or when I want to send something to somebody with a computer terminal--I want to do a drawing and zip it over, and put it in their mail box--they don’t need to be there. They can retrieve it at 12 a.m. in the morning, they can retrieve it three days later, they can be in New York and retrieve it. One of these days when we have portable computers with radio links they can be walking around Aspen and retrieve it.”

On the future (or better) uses for a randomly accessible optical video disc besides just movies.

“There’s a few experiments though that are starting to happen and you start to believe that five years, ten years from now it’s going to come into it’s own. A neat experiment happened right here in Aspen. Uh, MIT came out to Aspen about four five year--I think about four years ago--and they had this truck with this camera on it and they went down every single street, photographed every single intersection in every single street in Aspen. They photographed all the buildings. And they've got this computer and this video disc hooked up together and on the screen you see yourself looking down a street and you touch the screen and there are some arrows on the screen and you can touch walk forward and all of a sudden it's--it's just like you're walking forward in the street and you get to an intersection and you can stop and you can look right, and you can look straight, and you can look left, and you can decide which way you want to go--you can even go in some of the shops. It's an electronic map that gives you the feeling you're walking through Aspen. Then there s four little buttons in the corner because they came back and they did exactly the same thing all four seasons. So you can be looking down a street, hit winter all of a sudden get the same street with three feet of snow on it. It's really amazing, it's not incredibly useful, but it points--[laughter]--It points to some of the interactive nature of this new medium which is just starting to break out from movies and its going to take another five to ten years to evolve.”

Jobs wrapped up his speech by making the following prediction.

“When I was um, going to school . . . the thing that--that probably kept me out of jail was books. Because I could gp read what Aristotle wrote or what Plato wrote a--and uh, I didn't have to have an intermediary in the way. And a book was a phenomenal thing. It got right from the source to the destination without anything in the middle. The problem was you can't ask Aristotle a question. And I think as we look towards the next fifty to hundred years, if we really can come up with these machines that can capture an underlying spirit, or an underlying set of principles, or an underlying way of looking at the world, so when the next Aristotle comes around, maybe if he carries around one of these machines with him his whole life--his or her whole life--and types in all this stuff, then maybe someday after the person is dead and gone we can ask this machine, hey what--what would aristotle have said? What about this? And maybe we wouldn't get the right answer, but maybe we will. And that's really exciting to me and that's one of the reasons I am I doing what I am doing.”

Keep in mind, when he made this speech, Jobs was 28 years old. He was truly the renaissance man of the tech industry.

Steve Jobs, February 24, 1955 – October 5, 2011

Zimmerman Facebook Page Shutdown by Defense

noreply@blogger.com (Sheri Ann Forbes) — Wed, 22 Aug 2012 23:01:00 +0000

George Zimmerman's defense team announced today the GZ Facebook page would be shut down. The press release citss "diminishing returns" and increasing "concern" over speculation on the Facebook page over Zimmerman's guilt or innocence.

It begs the question, after all the public statements Zimmerman has made related to his prosection, what did they expect?

Obamacare Mostly Constitutional, Says Divided Supreme Court

noreply@blogger.com (Sheri Ann Forbes) — Thu, 28 Jun 2012 18:54:00 +0000

The much anticipated decision is in. A divided court upheld the Affordable Care Act, dubbed "Obamacare."
The Supreme Court held that under the Act, Congress did not intend the penalty assessed if individuals did not obtain health insurance to be a tax, but that Congress's intentions were not controlling on the Court as to whether the penalty was actually a tax. Thus, by ruling that the penalty was not intended to be a tax, the Court held that the Anti-Injunction Act is not implicated. What this means, is that the Court did not dismiss this case and tell appellants to wait until they have actually paid the penalty before coming back to the Supreme Court and asking for a refund. Rather than having to wait until 2014 to decide the constitutionality of the individual mandate/penalty, the Court chose to dispense with the challenge to the ACA now.
The Court next held that Congress could not impose the individual mandate under the Commerce Clause. But, the Court held, the Act can be upheld as arising under Congress's taxing authority. In rejecting the Commerce Clause as authority for the individual mandate, the Court explained that the ACA did not regulate commerce so much as it required individuals to engage in it. So a mandate to purchase broccolli is not the next move for Congress. This is the slippery slope where the Supreme Court drew its line. The individual mandate to purchase health insurance is nevertheless constitutional. In upholding the mandate, the Court explained that the tax was not so large that there is no choice but to purchase health insurance, and that not purchasing insurance has no legal consequences beyond payment of the tax.
The Court struck down the penatly assessed to States that choose not to participate in the expansion of Medicaide as being an unconstiutional use of Congress's spending power. This the Court ruled however, does not invalidate the remaining provisions of the ACA.

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Arizona's Immigration Law Is Mostly Unconstitutional, Says US Supreme Court

noreply@blogger.com (Sheri Ann Forbes) — Mon, 25 Jun 2012 17:13:00 +0000

The United States Supreme Court handed down its long anticiated ruling in Arizona v. Untied States, putting at issue Arizona's controversial immigration law, SB 1070, passed in 2010. The Ninth Circuit struck down the law in its entirety, and Arizona appealed to the US Supreme Court. Today, the US Supreme Court struck down three of four provisions as violating the Supremacy Clause of the US Constitution.
The Arizona law sought to criminalize the failure to comply with federal registration requirements for illegal alieans, and seeking employment or engaging in work in Arizona while being an illegal alien. SB 1070 also gave authority to Arizona law enforcement to arrest without a warrant anyone who the officer had probable cause to believe is an illegal alien, and to stop, detain or arrest to determine a person's immigration status.
The Supremacy Clause of the Constitution has been interpreted to provide that in areas where the federal government intends that its laws occupy the entire subject matter of that law, no state can enact laws that attempt to address that subject matter. It has long been held that the federal government occupies the entire subject matter of immigration and that states cannot regulate this subject matter. In striking down the criminal elements and the authority to arrest without a warrant granted by SB 1070, the US Supreme Court pointed out that the federal government has established that illegal alien status is a civil, not criminal matter, and that the federal government has the sole discretion to make such policy decisions regarding immigration and its enforcement. The Court stated, "Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime." The Court went on to state that the federal government has the power to consider equities in forming policies regarding enforcement of the federal immigration laws.
This particular point gets to the heart of the matter. Arixona's SB 1070 sought to make criminals of immigrants, who may be hard working, otherwise law abiding residents. This is not Arizona's call. This is the federal government's call. The scare tactics employed by Arizona law makers that illegal aliens are all rampant, violent criminals, casts a net that ensnares workers trying to make a living and who make a positiove contribution to society. Enacting laws based on fear and ignorance harken back to some of the darker moments in human history, and should have no part in this country's democratic society. Additionally, the Supremacy Clause prevents the 50 states from enacting 50 different sets of immigration laws, as the federal government already has a body of law in place.
The Court upheld the provision of SB 1070 that authorizes Arizona law enforcement to "make a 'reasonable attempt . . . to determine the immigration status' of any person they stop, detain, or arrest . . ." The Court emphasized that SB 1070 provided that the "stop and check" provision could not be the result of racial profiling and that communication between federal and state authorities was inherent and imperative.
Despite holding the challenge to the stop and check provision of SB 1070 as being premature because Arizona courts did not have an opportunity to interpret how it will be enforced, the Court specifically left open future challenges to the stop and check provision based on Arizona's enforcement and interpretation of its law.

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George Zimmerman Just Keeps Talking

noreply@blogger.com (Sheri Ann Forbes) — Thu, 21 Jun 2012 17:19:00 +0000

In a stunning move, George Zimmerman's attorneys have now made the decision to release Zimmerman's statements to police following the February 26, 2012 killing of Trayvon Martin. This move comes on the heels of the release of the jailhouse calls between Zimmerman and his wife Shellie, in which it appears the two were colluding to make false statements to the court.

How could it possibly help Zimmerman's case to release his own words to police the day after the public heard audio tape of Zimmerman and Shellie talking in code and trying to hide money? Why would Zimmerman's attorneys think the public is likely to believe Zimmerman's statements to police at this moment in time? Why when Zimmerman's credibility is in question?

In addition to his family and friends, Zimmerman would do best to ask his attorneys to stop speaking publicly too.

Update 6/28/12:
Florida prosecutors have now released more evidence in the Trayvon Martin killing. The police report of the February 26, 2012, incident has been made public, reports the Huffington Post, under pressure from the media, despite both prosecutors' and Zimmerman's attorneys' objections. Apparently, now Zimmerman's camp sees the wisdom in clamming up.

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George Zimmerman Is His Own Worst Enemy

noreply@blogger.com (Sheri Ann Forbes) — Tue, 19 Jun 2012 21:05:00 +0000

Despite the majority of public opinion appearing to believe that George Zimmerman is guilty of the unjustified homicide of Trayvon Martin, there is apparently a significant, if silent, segment of the public that believed in Zimmerman’s innocence. The Los Angeles Times recently reported that Zimmerman was able to collect more than $200,000 from his now defunct website, The Real George Zimmerman, indicating belief in his innocence. One prominent Southern Baptist leader, recently defended Zimmerman and criticized prominent african-american leaders, including President Obama, for their responses to the Trayvon Martin tragedy. So, does Zimmerman’s defense have legs under the Florida statute?
Florida’s Stand Your Ground statute is very liberal in its protection of the right to self defense. The Florida statute states “a person is justified in the use of deadly force and does not have a duty to retreat if . . . [h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony . . .” Details reported to the media about the events that night have so far been scant, but what has been made public are: the 911 call Zimmerman made, the telephone conversation between Martin and reported by his girlfriend at the time of the incident, and a few near-by witnesses who reported someone screaming for help and saw two people fighting. Based on what has been made public, and despite Zimmerman knowing law enforcement was on the way, and despite the fact that Zimmerman followed Martin after being specifically told not to by the 911 operator, Zimmerman might have had a chance of convincing the judge or a jury to give him the benefit of reasonable doubt who might then have dismissed the charges; might have, that is, if Zimmerman’s recent alleged actions did not appear that he had gone about “working the system.”
Regardless of what really happened that night on February 26, 2012, when Trayvon Martin was killed, Zimmerman now has his work cut out for him in trying to gain back his freedom. The recent release of the jailhouse calls between Zimmerman and his wife Shellie Zimmerman do nothing to help Zimmerman’s case in the court of public opinion. Before each of Zimmerman’s calls was connected to Shellie, a recording advised, “This call will be recorded and subject to monitoring at any time.”
Despite this warning, in the calls between the two that were released, it appears Zimmerman thought he was being stealthy, and talked in what appears to be code: while Shellie was at the bank, she and Zimmerman talked about making “transfers.” Zimmerman advised Shellie to make transfers from “Peter Pan” to “his,” and then from “his” to Shellie’s “every day,” and to pay off all the credit card bills. Zimmerman talked about having “at least a hundred dollars” in his account and Shellie talked about having problems wiring “ten dollars” to Zimmerman’s account, and Zimmerman reminded Shellie to “wire ten dollars” everyday. Shellie advised she “found a house” and Zimmerman advised to “put it under Jay’s name.” Shellie and Zimmerman also discussed whether she “had access to ten dollars,” could “transfer ten dollars,” and to put “ten dollars in the box.” Shellie reported going back to the bank “to do that thing” and confirmed a debit card was ordered. Zimmerman advised Shellie he “asked Ken to double up on it, ten dollars in the morning and ten dollars in the evening,” that way Shellie could take “ten for you and ten for Suzie,” and clarified “he can only take it from Peter Pan to mine.” Zimmerman reminded Shellie to “make the transfers.” At one point, discussing posting bond, Zimmerman advised “if it’s more than fifty, just pay the ten percent” to a bondsman and then Shellie asked, “you don’t want me to pay a hundred dollars?”
It doesn’t take a genius to infer what “Peter Pan” means, what amount “ten dollars” really is and how much “a hundred dollars” really is. If Zimmerman is this emboldened, on a line he knows is monitored by law enforcement, how truthful has he been about the February killing of Martin? Glaringly absent from these calls is any concern for Martin’s family. After this latest development, at least one analyst believes that public opinion in Zimmerman’s favor will diminish.
Zimmerman would be best advised to stop speaking publicly, and to ask his friends and family to do the same Share

Would You Like Broccoli With That Health Insurance Plan? The Supremes Discuss The Slippery Slope Of ObamaCare

noreply@blogger.com (Sheri Ann Forbes) — Wed, 28 Mar 2012 16:21:00 +0000

Broccoli, cell phones and burial services, oh my! What will the government force us to buy next? The parade of horribles was the topic du jour at Tuesday's oral argument before the US Supreme Court on the constitutionality of the individual mandate contained in the Affordable Care Act. The Supremes expressed concern over the slippery slope potentially created by the ACA and where the line should be drawn. At issue is whether the individual mandate of the ACA is authorized by the United States Constitution art. 1 sec. 8 clause 3, the Commerce Clause, which gives Congress the power to regulate interstate commerce. The Supreme Court has, over the past 190 years, interpreted the Commerce Clause to allow congress to regulate all sorts of industries, from ship navigation, to the Chicago meat industry, to wheat production for personal use.

Justice Scalia, notorious for his conservative legal opinions, asked the first question of Solicitor General Donald Verrilli, setting the tone for the day. Scalia queried, perhaps disingenuously, why couldn't the federal government just directly address the problems of individual access to health care rather than the individual mandate to purchase health insurance. The answer of course, is that the present Congress will not create a public health care option. Appropriately, Mr. Verrilli did not give this answer, but offered instead that the ACA is in fact addressing the problem directly.

The Justices' questions centered around the concern that if Congress can require individuals to purchase health care, why can't Congress require the purchase of a cell phone, of broccoli, of health club memberships or of funeral services? Verrilli;s answer to these questions pointed out the health care market is different because (a) it is the only market where you can show up without the means to pay and you will still be provided the service at the expense of those who do pay; (b) everyone will eventually need health care and thus everyone is a market participant; (c) the ACA seeks to regulate the health care industry, not the insurance industry, and requires the method of payment for health care be through health insurance; (d) the ACA uses the most efficient method that allows consumer choice among insurance policies; and (e) the ACA does not provide any enforcement powers--if insurance is not purchased, the penalty is not anymore than what one would have paid for the insurance.

The respondents arguing to strike the mandate did not have any easier a time with the Justices. Attorney Paul Clemente, arguing for the respondent 26 states, argued the ACA forces individuals to purchase a product. Clemente argued that defining the market as those who access health care was improper, and that the market being regulated was those that purchased insurance. Clemente suggested it would be constitutional for the ACA instead to only require that insurance be purchased at the point of sale; i.e. only when one gets sick and shows up to the Emergency Room. The Justices focused their questions to Clemente on issues regarding the definition of the market being regualted (insurance versus health care), the fact that uninsured patients already shift the cost of their health care to paying patients, and what difference does it make if the ACA requires the purchase of insurance prior to getting sick or at the time of receiving health care services.

Justice Breyer proposed a hypothetical situation several times to the respondent attorneys, asking, what if "a disease is sweeping the United States, and 40 million people are susceptible, of whom 10 million will die; can't the federal Government say all 40 million get inoculated?" Mr. Clemente avoided answering, which perhaps accounts for Justice Breyer's attempt three more times to get an answer. Justice Breyer then changed the hypothetical to whether the EPA could require all automobiles have anti pollution equipment if it turned out 60% of them caused pollution. Attorney Carvin conceded the commerce clause authorized Congress to enact such a law but pointed out only those who bought automobiles would be required to do so.

The problem with the respondents' argument is they attempt to limit the individuals affected in the market being regulated by the ACA to those purchasing insurance, leading to their protest that Congress is requiring an affirmative purchase of a product that would not otherwise be purchased. To hear the respondents say it, the 40 million uninsured are uninsured by choice, rather than because they cannot afford the premiums, and thus should not be forced to purchase an unwanted product. Justice Ginsberg's comparison of the ACA to the social security system is well taken, albiet, social security is funded by a tax, making it a different animal. The truth is, as many of the Justices pointed out, every person from the time they are born will at some point need to use health care. That is the industry that the ACA targets. The ACA mandates that health care is paid for by insurance, which the respondents concede is a proper Congressional power under the commerce clause. As Justice Kennedy pointed out, "the young [healthy] person is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that s not true in other industries." Thus their participation directly affects the price others will pay not just for insurance, but for health care. Health care costs go up because hospitals are required by federal law to treat those who cannot pay for their services, thus shifting the costs to everyone else. The respondents' solution that those who "choose" not to purchase insurance can be required to purchase it at the time they do need health cares serices, is not only unreasonable and naive, but implausible.

As Mr. Vermilli pointed out, 40 million Americans can not obtain health care insurance because of the cost of the premiums. If a point of sale requirement were placed on these individuals as argued by the respondents, the cost of insurance would essentially be the cost of the health service. Actuarially, the premium you pay is based on some calculus of the chance you will get sick and how much the health care you might need could cost. If someone shows up at the Emergency Room and endeavors to purchase insurance then and there, the chance that you will get sick is 100% because you are currently sick, and the cost is more or less calculable. So, the premium, from an actuarial point of view and the point of view of the insurance company should be the cost of the treatment you are seeking. Which brings us back to the uninsured showing up to the Emergency Room with no means of paying The cost would still be shifted to others with insurance.

Obama Care Oral Arguments Underway

noreply@blogger.com (Sheri Ann Forbes) — Tue, 27 Mar 2012 21:28:00 +0000

On Monday, March 26, 2012, oral arguments in front of the United States Supreme Court got underway to hear the legal challenge to the Affordable Care Act enacted by Congress and signed into law by President Obama on March 23, 2010.

The Supreme Court scheduled an unprecedented six hours over three days for oral argument this week after granting certiorari. At issue is the Act's individual mandate to purchase health insurance or pay a tax penalty. two federal appellate courts have upheld the mandate, one declared it unconstitutional and one appellate court declined to decide the issue under the Anti-Injunciton Act, ruling the issue could not be decided until tax payers are actually harmed by having to pay the tax/penalty in 2015.

Monday's oral argument focused mainly on whether the Anti-Injunction Act prohibited the present challenge, and whether the requirement that a tax payer who fails to purchase health insurance is assessed a tax or a penalty, which would dictate whether the AIA applies. There was discussion between the Justices and amicus curiae court appointed counsel Robert A. Long whether the Anti-Injunction Act is jurisdictional, thus robbing the courts of the ability to hear the issue, or directed at the Solicitor General, thus prohibiting the litigants from filing suit.

Nomenclature was an issue regarding whether the assessment is actually a tax or a penalty. Right out of the box, Justice Alito quipped to the Solicitor General for the Department of Justice Donald B. Verrilli, "General Verrilli, today you are arging that the penalty is not a tax. Tomorrow You are going to be back and you will be arguing that the penalty is a tax." When Chief Justice Roberts referred to the assessment as a penalty, attorney for challengers to the Act, Gregory G. Katsas, corrected "taxes, Mr. Chief Justice."

The attorneys were peppered with questions mainly from Ginsberg, Scalia, Sotomayor, Breyer, Roberts and Kegan, with a few questions from Alito and Kennedy. Thomas remained characteristically silent during argument.

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Me and 500 of My Facebook BFFs: A Rambling Stream of Consciousness About Facebook

noreply@blogger.com (Sheri Ann Forbes) — Tue, 20 Mar 2012 22:39:00 +0000

Okay, so this post is not a legal update. So sue me. Just accept that you will see more nonlegal posts interspersed among my legal analyses from now on.

The other morning I was thinking about how on-line banks and financial institutions these days are requiring users to answer “security questions” to verify identity and keep identity theft at bay. It then occurred to me,that on-line social sites such as Facebook put their users at risk, because they encourage people to share in a public setting the personal information banks use to verify one’s identity. Perhaps people should not be using Facebook the way we all do because many of the answers to the “security questions” used most often can be found on the Wall of one’s Facebook page. For example, my home town, my high school, a list of my family members, and now with the new timeline, my job history and places I have lived and the respective dates are all posted for anyone to which I give access to find. Thus, security questions like mother’s maiden name, city you were born in, first pet’s name, first employer, or even high school mascot all potentially could easily be found with not too much effort.   To put this in perspective, if one’s security setting allows only friends of friends to see wall posts and information, and one has, say, 500 friends, each of who have 500 friends, one’s “security” information is potentially accessible to tens of thousands of people.

But maybe the flaw isn’t in the information Facebook has lulled us into voluntarily posting on our accounts, or even in Facebook’s privacy settings. Yes, I know, this is antithetical to the Facebook bashing of late and accusations that Facebook intentionally makes it difficult to control one’s privacy settings. But it is not as if the type of information posted on Facebook is super secret stuff like one’s social security number. With all the conspiracy theories about Facebook, I have yet to see an accusation that Facebook is gathering social security numbers, ATM PINs, or bank account information. Realistically, the type of information contained on my Facebook wall is information I would have no problem sharing with a complete stranger I just met. The usual mindless, boring, get-to-know-you chitchat is not infrequently comprised of where one was born, what high school one attended or what type of embarrassing first car one owned. I am not often concerned nor do I even consider that the person with whom I might share this type of information is going to steal my identity. So maybe the flaw isn’t Facebook. Maybe the real flaw is the type of questions the bank considers “security” inducing. Maybe the banks should be asking stuff that we do tend to keep super secret, such as what loathsome diseases one has, or one’s criminal history, annual income, number of late payments in the past twelve months. Maybe using information we would divulge just to be social is not fodder for a security question to verify our identity. After all, it is those mundane details about one’s self that we use to socialize and with which we make friends with one another. So, maybe Facebook has it right after all.

So, maybe the problem is the number of people we friend on Facebook.   Do we really need to friend everyone we ever knew and his brother? Do we really have 500 bffs in this world? Before on-line social networks, we made friends the old fashioned way; we hung out with them. According to research conducted by the likes of Festinger (1954), Schachter and Back (1950), and Zajonc (1968), the one factor that most predicted whether two people became friends is propinquity. Throughout different stages of our lives, we share propinquity with different sets of people: the kids on our street in elementary school; the kids in our class in high school; the kids in our dorms in college; the colleagues and/or neighbors we have as young adults; the people who parent the kids that hang out with our kids; and perhaps inevitably, the people whose rooms are next to ours in the nursing home.

As we moved along life, we drop some friends, keep in touch with a select few, and move on to a new set of friends. Part of what keeps us friends is being in close enough geographic proximity to one another so that we may share the little mundane things about our lives. For example,“Oh! Did I tell you what so-and-so’s response was to my letter (email post 1990s)?” or “My wife wants me to take her to another bad 70’s/80’s/90’s band/concert this weekend. Wanna come?” or “Dude, I want a rematch on that racquet ball game last week.” If we didn’t have this semi regular discourse, most people who were in our circle fell out, with the exception of the one or two with whom we kept in touch regardless of where we were in life or where we moved geographically.

Facebook has really changed all that. Not only do we keep in contact with more people, perhaps people we would even be happier to have lost contact with, but we are kept up to date on all those mundane details on a regular basis. We post our status constantly. “Made it to the gym today, did 50 push ups, my personal best.” Or “My three year old knocked out his front tooth.” Or “I was offered a new job at Local Big Firm.” Propinquity is now present not only in real space, but in cyberspace. I was keenly made aware of this revelation when I updated my own status last week to announce my accepting a job offer at Local Big Firm. I received comments or “likes” from somewhere around 50 separate people. In my life, I have never had 50 people in anyone circle of friends to which I would have made this announcement and in return received so many heart warming good wishes. And of course, these 50 people don’t include those closest to me who don’t even have (gasp!) a Facebook account! When I saw (what I consider) the large number of good wishes, I started thinking about what the 217 people I have friended on Facebook really mean to me. Like many, my (modest) Facebook posse consists of friends and acquaintances from: elementary school, high school, college, neighbors from old addresses, work, family, present neighbors, friends/acquaintances, friends/acquaintances made because of my kids’ friends, and all their brothers. Surely I don’t have 217 bffs, do I??  The propinquity theory dispels this, doesn’t it? I don’t have regular contact and/or discourse with 217 people, except in cyberspace. Can the propinquity theory be applied to cyberspace? The answer is yes. Propinquity explains cyberspace just as well as real space.

Here’s the thing. Facebook gives us the tool to create propinquity in cyberspace. I had an epiphany that brought this conclusion into focus for me. I have a friend Matt E. from college (not to be confused with my close friend Matt G. from grad school). Matt E. and I were close friends in college and for a few years after until our lives diverged. He got married, I moved to go to grad school. I haven’t actually seen Matt E. in person since Bush Sr. was President. If not for Facebook, I likely would never have (recently) gotten back “in touch” with Matt. By Facebook standards, “in touch” means we friended each other and said something like, “Long time no see!” and left it at that beyond public status updates. But I have read Matt’s status updates and posts. I was updated on his trip to Korea and saw pictures of his college-aged daughter I have never met. And presumably, Matt has seen my posts about my latest work-out session personal bests and has seen pictures of my five year old’s cut finger that resulted to an ER visit, along with the other 216 Facebook friends I have.

Here’s how my epiphany went. After making my post about my new job, Matt made a short, tongue-in-cheek comment that reminded me just how well he knew/knows me. That short comment bridged both time and space to bring him back, if only briefly, to being one of my closest friends. Without Facebook, that would never have happened. Without Facebook, I might have looked him up on a trip back home. Maybe. I might have suggested that we grab lunch. We might have spent the two hours “catching up.” “So, how’s your daughter? In college?? Really???” and that would have been that for another ten or twenty years, if we were lucky. Facebook dispenses the small talk we engage in on a semi regular basis when we are in proximity to each other and that brings us together and keeps us friends. Even if we don’t act on the information posted to Facebook, e.g., “How was your trip to Korea?” (and really, Facebook relieves us of that social requisite of feigning interest in some subjects), nonetheless, it keeps us friends. So when Matt thinks of something short and witty to say to me that he knows only I will get, time and space don’t get in the way of him making that comment to me. All he need do is click on my post and type a comment. Just like that, we shared an inside joke between two friends. So yeah, I really do have 217, give or take, bffs. Facebook, and all it’s evil information-gathering, makes it possible for me to do so.

So, really, it’s the banks that need to come up with some other way to make our on-line banking more secure. Using mundane facts to put up firewalls to our financial information is just a dumb idea, even without Facebook putting it all out there.

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Just Pay The Attorney Consultation Fee: You'll Thank Me Later

noreply@blogger.com (Sheri Ann Forbes) — Wed, 29 Feb 2012 15:20:00 +0000

There is a saying among attorneys that lawyers do well in good economic times and bad. Of course, the latter hasn't been so true in the present bad economic environment, simply because collecting what is owed has been more challenging for attorneys than in the past. But for some, the adage seems to be backwards; that in good economic times, one does not need an attorney. This could not be further from the truth.

As a litigator, it never ceases to amaze me when a new client walks in my door with contract in hand asking me to defend a lawsuit that has been filed against him, and one look at the contract reveals the clients' ignorance of the contract's contents or the obligations the client agreed to.

In good economic times, new business associates are giddy with anticipation when they venture into a new agreement together. They are in the honeymoon phase, shaking hands, back slapping, and congratulating each other on their new contractual arrangement, and pouring the champagne to celebrate how much money they are going to make. However, too often one party to a contract is handed a prewritten contract, that, though there may be some negotiation about the salient terms (e.g. how much is the monthly rent, what percentage of profits am I entitled to, etc.), they do not pay any attention to the "boiler plate" language, or do not recognize the obligations to which they are agreeing. This especially occurs where one party has more "bargaining power" than the other. Generally, it is usually the small business owner who forgoes consulting an attorney to "save money." Thus, while everyone recognizes the need for the pre-nup, love is blind and one party may be blinded as to what the pre-nup should or should not say.

Every party to a contract should consult an attorney to go over the contract with a fine toothed comb. Parties to a contract should not rely on one attorney to draw everything up, because the attorney must have allegiance to only one party. The attorney either represents Party One OR Party Two, OR the attorney represents the corporation, in which case she is not an attorney for EITHER Party One or Party Two. Small business owners must consult an attorney of their own to avoid buyer's remorse when five years later the deal goes south in an economic downturn. Here are some real life examples I have encountered over the years.

Client A recognized that forming a corporation provided a layer of protection to keep his personal assets separate from the obligations of the business. Client A formed a corporation and entered into a commercial lease agreement for the benefit of the business, in the business's name only, but then signed a personal guarantee. Client A did not realize that a personal guarantee made his personal assets available for collection for the debts of the corporation. Had Client A come to me before signing the lease, he would have known what he was committing himself to, and could have avoided incurring thousands of dollars in legal fees.

Client B signed a 10 year commercial lease that stated if he broke the lease and vacated the premises prior to the 10 year term, then even if the landlord re-leased the premises at exactly the same or even higher rent, Client A would still be held to the balance owed for all future lease payments on the 10 year lease. Had Client B come to me before signing the lease, he would have understood this commitment, and could have perhaps negotiated a shorter lease term with an option to renew.

Client C signed a signature page presented to her by her cousin without asking to see the full document. Nothing more need be said here.

Client D signed a purchase agreement for a condominium that stated he was obligated to pay even if he could not secure financing from a bank. Client D did not realize this, but would have if he had come to me before signing.

Client E signed a contract that stated any litigation arising regarding the contract was to be brought in Florida. I had to explain he could not file suit in Nevada, but had to find an attorney in Florida to bring suit there.

Client F was in the business of purchasing and selling real estate by borrowing money from others. Client F put the title in other's names, but believed he "owned" the property based on an oral agreement he had with these other people. Had he consulted me, I could have explained that courts do not recognize oral agreements for the transfer of real property. A written agreement could have been drafted to accomplish his goals and reasons for recording the title as he did.

A couple of things to note: Consulting an attorney before you sign a contract will not make you "bullet proof." Even if after getting the advice of an attorney, you are able to change the terms of the contract so they are more favorable to you (and that is not always possible depending on with whom you are negotiating), there are always arguments that can be made in litigation to challenge even the most "iron clad" contract. An attorney also cannot tell you what the best business decision to make is, only you can make the business decisions. But an attorney can do two things: (1) Help you negotiate he best terms possible, and (2) explain the ramifications of the contract so you can make an informed decision before signing on the dotted line.

Noteworthy U.S. Supreme Court Decisions of 2010

noreply@blogger.com (Sheri Ann Forbes) — Fri, 17 Dec 2010 01:22:00 +0000

Once again, this year, I was mesmerized by the melodic cadence of renowned Professor Erwin Chemerinsky’s lecture discussing the significant U.S. Supreme Court opinions of 2010. Here is a tongue in cheek recap of some of the more interesting decisions Professor Chemerinsky highlighted.

Don’t expect a Fourth Amendment right to privacy when sending text messages with employer-owned equipment to your mistress while on the job.

City of Ontario v. Quon, 560 U.S. ___ (2010).

If you want to invoke your right to remain silent, break your silence and say so.

Berguis v. Thompkins, 560 U.S. ___ (2010).

Justice Scalia has decided the invocation of the right to counsel while being questioned automatically expires after 14 days. Thus, the new police interrogation techniques will be to arrest and Mirandize a suspect, and if he invokes his right to counsel during questioning, simply wait 14 day periods before interrogating again.

Maryland v. Shatzer, 559 U.S. ___ (2010).

Locking up your teenager and throwing away the key for anything less than murder is cruel and unusual punishment.

Graham v. Florida, 560 U.S. ___ (2010).

Criminal lawyers who want to get their resident alien clients off, advise them to plead guilty and then misadvise them a guilty plea will not result in automatic deportation.

Padilla v. Kentucky, 559 U.S. ___ (2010).

Corporations are people too; at least when it comes to the First Amendment and spending money in election campaigns.

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010).

Professor Chemerinsky has a unique ability to keep participants attentive with not only his distinctive style of speech, but with his humorous side notes and commentary. This year I noticed that not only do more questions get asked in Professor Chemerinsky's CLE lectures, but the questions are generally the sort one would have asked in one's Constitutional Law class in law school to impress the professor, i.e., statements of opinion or analysis disguised as questions: "Well, is it your opinion professor that this case modifies the (insert obscure reference to case law not being discussed) case?"

But, I have to admit, listening to my fellow attendees attempt to impress Professor Chemerinsky is almost as much fun as listening to his lecture.

Finding That Elusive Legal Niche Is Not Always A Good Thing

noreply@blogger.com (Sheri Ann Forbes) — Tue, 06 Jul 2010 19:12:00 +0000

The ABA Journal reports that a young Las Vegas attorney was so successful after opening his own practice two years out of law school, he had a "breakdown" from the sheer volume of clients. Citing the RJ, the ABA Journal reports that Jorge Sanchez launched his own bankruptcy practice catering to Spanish-speaking clients just two years out of law school. Apparently,Mr. Sanchez quickly became inundated with clients, and unable to keep up, struck a deal with Las Vegas attorney Joseph Scalia.But the deal between the two attorneys soured, resulting in what the ABA termed Mr. Sanchez's "breakdown." The ABA Journal reports that last week the Nevada Supreme Court temporarily suspended Mr. Sanchez's license.
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