Law Blog

It’s a weird thing when you start studying the law.  Once your friends and family find out, they seem to come to you for every single law-related problem that comes up in their lives.

I suppose it’s true for every field of study or vocation.  Doctors probably have their cousins asking them to look at moles and pus-filled gashes.  Astrology professors probably have their aunts pestering them to find Orion’s Belt.  Taxi drivers probably can’t get their siblings to stop using them as a substitute for Google Maps.  The list goes on and on.  And the best part about all of this is that all the people who ask you these questions don’t care whether their question is within your field of specialty.  Resulting in situations like this:

“Hey Phil, what street do I take to get to the Eifel Tower?”

“I don’t know, my taxi only operates in New York.”

Okay, so maybe it’s not as drastic as that, but you get my point.

Anyway, regardless of the absurdity or irrelevance of the question, you always end up answering it to the best of your ability because, hey, what can you do?  They’re your friends and family and you like them (for the most part), which brings me to the point of today’s post.

I was talking to a friend the other day.  Let’s call him Norman because I don’t him to get pissed off at me using his suffering for my work.  Norman is a really nice honest guy.  He’s the type of person to go through his whole life never trying to cause a scene, which is good in some ways, but bad in a lot of others because maintaining that kind of lifestyle often leads to his inability to defend himself.

Anyway, about a couple years ago Norman opened up a small convenience store.  His store was located within a mini-mall in his hometown.  It was a good fit for him because on top of being really nice, Norman is also really laid back and doesn’t like doing strenuous and stressful work.  Before renting out his location, Norman was able to secure the right to be the only purveyor and seller of food in the mini-mall.  The agreement was promised in Norman’s contract with the mini-malls owner.

But last month, Norman neighbor, a Laundromat, put out a soda vending machine in front of his store.  Norman saw this as a violation of the non-compete clause he had in his contract, but when he went to the mini-mall’s owner to tell his neighbor to take the soda machine down, the owner refused.  He claimed that soda is a drink and therefore didn’t count as a type of food so it was perfectly in line with Norman’s contract.  Norman then came to me to see what his chances were to get the soda machine put away.

This situation happens a lot.  Just taking a look at the number of unfair competition cases LegalMatch gets every year is good evidence of the popularity of these types of disputes.  My advice to Norman was the same that anyone knowledgeable in the law would give: it depends.

Basically in most jurisdictions, for non compete clauses to be invalid they have to be overly broad as to be considered unreasonable.  In Norman’s situation, it would seem like his non-compete clause was pretty clear since it outlined a specific limitation that could be reasonably followed (that he’d be the only food store).  And that in my opinion I’d think that he’d have a fairly easy time convincing a judge that drinks can be considered food because it’s something that’s consumed.

But like everything in the law, nothing can be certain.  Because even when all the cards seemed stacked in one direction, a good lawyer can easily make them fall in the other.

Rush Limbaugh is in the news again and this time it’s not because he said something horribly insensitive, stupid, narrow-minded, and/or racist.  It’s because someone else made up an insensitive, stupid, narrow-minded, and/or racist quote and attributed it to him.

Specifically, that someone was CNN’s Rick Sanchez, who claimed on air that Limbaugh said:

“I mean, let’s face it, we didn’t have slavery in this country for over 100 years because it was a bad thing. Quite the opposite: slavery built the South. I’m not saying we should bring it back; I’m just saying it had its merits. For one thing, the streets were safer after dark.”

Ouch.  Harsh words, whether Limbaugh said it or not.  Check out the video here (the bogus Limbaugh quote comes up about 1 minute and 14 seconds in).

Limbaugh was understandably steamed at the fraudulent attribution.  No one wants to be called a racist, unless of course they actually are one, then they’re probably okay with it.

So now the inevitable question being asked by political pundits around the country, “Will Rush Limbaugh sue for slander?”

The answer (in my opinion anyway): probably not.  Rush will probably just want some sort of apology from Sanchez and CNN, which he already received via Twitter, though he’d probably would want more of a formal one.  If anything, he’ll just use it to further push his far-right republican conservative agenda.  “More evidence of liberal bias, using me as a target to demonize…blah blah,” is probably how it will go down.

Though if he did sue, he probably wouldn’t have too tough of a time convincing a jury to award him money.  Since he’s (arguably) a celebrity, he’d be considered a public figure and would have to satisfy the higher actual malice standard set out in The New York Times Co. v. Sullivan in order to prevail on a defamation lawsuit against CNN and Sanchez.  Basically he’d have to prove that the CNN and/or Sanchez knowingly or recklessly made false defamatory statements about him.  And in light of the fact that the CNN Twitter post admitted to this, it would at least appear that Rush has a good case.  Though CNN could probably throw up some defense by publicly admitting and correcting their mistake, in my opinion it looks like Limbaugh would have a strong case.

Celebrities have it tougher when it comes to proving libel and defamation – it’s one of the few times where all us little people have an edge.  All we have to do, essentially, is prove the false statement damaged our reputation.  Though it may seem like defamation wouldn’t be a huge problem for non-public figures, LegalMatch does receive its fair share of defamation lawsuits.  So don’t be afraid to press your rights.  Unless you’re Rush Limbaugh, in which case you should probably reevaluate your life and try to figure out why people would so naturally believe you’d make such an outlandish racist statement.

As the end of October nears, children everywhere are wetting their pants in anticipation for the one time of year where wearing a Spider-man costume and asking for candy won’t land you in jail.  Ahhh Halloween, how we love thee.  It’s everyone’s favorite holiday, unless its hot sister Christmas is around, in which case take a message and tell it we’re washing our hair.  Halloween is great.  It’s a time for pumpkin-carving, trick-or-treating (as long as you don’t live in New Orleans), and of course, pranks.

Sometimes a well-laid prank can be even better than all that candy.  Who doesn’t love leaving a flaming bag of dog poop in front of your cranky neighbor’s doorstep or covering said neighbor’s house in toilet paper?  Not to mention the all-time classic, “bidding on a federal auction for oil and gas leases when you don’t have the money or intention to follow through on it.”

Don’t remember that one?  It was all the rage when I was still in elementary school.  I remember how my friends and I would dress up in a suit and tie, go down to the old Bureau of Land Management, or BLM for all you youngins, and place a phony bid posing as representatives for a kooky billionaire.  Still doesn’t ring a bell, huh?  Oh well, I guess I’m just getting too old to keep up with all these new fangled pranks…

But at least there’s one person who is keeping it alive.  But Tim DeChristopher is doing it for an entirely different reason.  Making a stand for the environment??  Psshtshaw…  Whatever happened to just messing with people because it’s fun?

Seriously though, this is a very serious offense.  DeChristopher is being charged with two felony counts, carrying up to five years in prison plus fines up to $750,000.  The reason he did it was to cause disruption in protesting what he believes are governmental acts that are contributing to the rise of global warming.

But whether you believe in DeChristopher’s cause or not, you’ve gotta admire the legal defense he’s planning to use: a necessity defense.  It’s basically a choice of evil defense, where a person is forced to choose between breaking the law and preventing some evil/harm, or letting that evil/harm happen.  The article does a good job of summarizing DeChristopher’s chances of succeeding with this defense.  Though I think they missed one important aspect: standing.

Usually to employ such a necessity defense, especially against the federal government, a person would have to show that he or she was actually harmed by the actions of the government.  No actual harm usually equals no defense.  I say usually because like every good law school will teach a first-year student, it depends.

I suppose DeChristopher could make some argument that the harm to the environment hurts the planet which in turn harms his life expectancy by increasing the chances of natural disaster or depleting the ozone layer which would lead to increased exposure to harmful UV rays.  But looking at most case precedent, these types of arguments are considered too nebulous and broad to ever succeed.

Good for him for trying though.  The number of lawsuits received by LegalMatch regarding environmental issues, land-use, and toxic torts has increased by approximately 20 percent from last quarter, so it seems like they’re all the rage now.  So maybe Lady Luck will smile in DeChristopher’s favor, though if you ask me, she’s probably terminally ill from skin cancer…

With the democratic vote down of the public option of President Obama’s health care plan, the tired, poor, and huddled masses yearning to breathe free are understandably upset.  Essentially, free public health care for those who need it most sounds like a no-brainer, right?  Apparently not.  It’s fine, I guess.  I mean, who cares about the health of poor people?  Those sub-humans have been dragging our economy down for, too, long.  Always complaining about how hungry and sick they are.  Such a group of whiners…

Was I laying the sarcasm on a little too strong again?  Sorry, bad habit of mine.  *sigh*  The rich not only seem to be getting richer, but they also seem to be able to dictate how this country runs…

Anyway, I guess it’s back to the grind for all us working-class schlubs (and humble bloggers) since we don’t have the luxury of extended vacations and daddy’s money to preserve our physical and mental health.

That’s no joke either.  The working class really does need to keep on working in order to stay above that proverbial poverty line.  Even under an employee co-pay system, the average cost of health insurance for a family of 4 in America is $13,000.  $13,000 is a lot of money, but considering this amount is over a third of what the average person makes in a year and the fact that food, living, and incidental costs just keep going up, you’ll start to get a better picture if how important that chunk of income in.  Not to mention how important and vital a publically funded health care option really is to the vast majority of citizens in America.  Oh, and by the way, don’t forget that the average cost of raising one; ONE child to adulthood (which is 18 years old, just in case any of you alcoholics out there think it’s 21) ranges between $124,000 to over $250,000.  Another interesting note is that single parents with incomes over $39,000 actually spend more on their kids than two-parent households.  Guess missing a parent makes you more likely to throw money at your kid’s problems.  Wish my parents did that with me…

Having free, or at the very least, affordable health care for people and their families in light of these statistics emphasizes how vital the public option really was and is.  People will always fight over money simply because there never seems to be enough of it to go around, whether that money is taken from them through taxes or services that were once free, but no longer given as such.  It’s no surprise then why according to the latest statistics from LegalMatch, over a third of all litigation raised against employers is regarding coverage of employee benefits.  In other words, health insurance.

It’s a brain-teaser how this new democratic congress voted down such an important reform.  I mean, the majority of citizens seemed to be for it.  And last time I checked, public official were supposed to be elected in order to represent the people’s interests.  I guess we’ll never know why thing turned out like they did.  But I wonder if someone might have some clues that could point us toward this anomalous outcome.

In my opinion (IMO, to you all people who can’t pry yourself away from the interwebz) a person goes through a number of stages in their life: childhood, adolescence, young adult, middle-aged, then old dude or dudette.  That’s generally how most people see life, too.  But within these stages, there are a bunch of sub-stages that occur, most interestingly between young adult to middle-aged.  I’m in an odd/interesting/sad stage right now.  I’m right around the age where everyone is starting to get married, but also I’m getting closer to the age where I’m starting to know people who are getting divorced.  It’s weird – whatever happened to the stage where we’d all play around in the sandbox and make mudpies?  Oh, childhood, why did we have to leave you?

Anyway… recently, I ran into an old friend, Joey, from high school and we ended up talking about his life since I last saw him.  Joey was a pretty popular kid when we were in school together.  Despite the fact that our school didn’t have very strong sports teams, Joey was a star-player on our school’s basketball team nonetheless, which is why he was also popular among a lot of the female students.  And in our senior year, Joey hooked up with Deborah, a shy, yet nice girl from our school.  Everyone thought they were the cutest couple and that they were headed to good successful places.  So when Joey told me that he was getting divorced, I was shocked.  Even more surprising was when he told me how things between he and Deborah had soured to the point where they were no longer talking and that he was locked in a bitter custody battle with her.

I was shocked, even more shocked than when I discovered the drying power of ShamWow!

Joey wanted to have primary custody of the children.  He told me how other divorced guys he knew all either lost complete custody of their children or were limited only to visitations rights.  Joey didn’t want to keep Deborah from seeing their children.  In fact, he wanted her to be a very active part in their lives.  But what he didn’t want was to become like all the other divorced dads he knew.  He didn’t want to be limited to only visiting his children because he was worried that it’d make his children distant.  He wanted to know what his options were.

Well, I didn’t know what to tell him since anyone in or heading toward a career in lawyering knows that the answer to every legal question is that “it all depends.”  Laws can be ambiguous and outcomes vary all the time and are dependent on a number of things as facts can always be distinguished to appear different from other cases tried before it.

Generally, in California and most states, courts usually award custody to the primary caregiver, meaning the person who spends the most time with the child.  Usually that translates to the person who doesn’t hold paid employment and raises the child, but when both parents work, like in Joey’s case, it comes down to fitness and a calculation of time spent with the child.

Joey isn’t alone in his predicament.  A vast majority of family law cases received by LegalMatch are about child custody battles.

The best advice I could give to my friend was to seek the counsel of a qualified family law lawyer.  Because regardless of the legal situation, case outcomes are not always predictable.