Author Archive for Jay Rivera

Big Step Towards Use of Cameras in the Courtroom

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The use of cameras in the courtroom has always been a hotly debated topic.  It took a long while before still photography was allowed in the courtroom; now all fifty states in many circumstances allow video recording during court sessions.  On the other hand, federal courts are still very restrictive when it comes to video recordings of hearings.  Recently, a new experimental program is pushing the limits of what is acceptable in terms of digital camera recordings in U.S. courtrooms.

The Administrative Office of the U.S. Courts is pushing a pilot program involving 14 different courtrooms across the country.  The programs will allow the videotaping of selected trials in civil courtrooms.  The recordings are to be digitally uploaded to a government website and made available for the public to view.   Accordingly, many lawyers and judges are enthusiastic about cameras in the courtroom and what this could mean for the judicial branch as a whole.

Advocates of the program usually cite “education” as one of the main benefits of the use of camera recordings during trial.  That is, allowing the public to view recordings of courtroom sessions would serve to educate the average citizen on how courtroom proceedings are actually run.  I agree with this logic, since the average citizen gets their idea of court hearings either from the O.J. Simpson trial or from Lindsay Lohan’s legal woes.  Suffice to say, celebrity trials don’t really provide the public with a well-rounded or even accurate picture of trial proceedings.  So, the idea of cameras in the courtroom can have the effect of curbing some of the sensationalism associated with celebrity trials.

Another argument in support of the pilot program is that the recordings will help with judicial accountability and transparency.  Unlike the other branches of government, the judiciary has been largely resistant to video recordings of sessions.  This is especially true of the federal court system, which has been video camera-shy for ages now.  It could be that the lack of cameras in the courtroom allows lawyers to get away with some questionable behind-the-scenes conduct, and contributes to judges legislating from the bench.  So having the hearings video taped would supposedly expose/reduce some of this.

On the other hand, one of the main arguments against recording court sessions is that the presence of cameras might change the courtroom dynamic.  For example, a lawyer might be hesitant to argue a certain legal theory because they become self-conscious about how the public might perceive them.  Jurors and witnesses might also be intimidated knowing that they would be on camera.  Or, on the other end of the spectrum, there is concern that a lawyer (and even a judge) might become overly dramatic if they know that they’re in the spotlight.  Given some of the courtroom dramatics involved in past celebrity lawsuits, there is some basis to this argument.

In my opinion, I like the idea of this new program to record and upload court hearings for public viewing.  As Chief Judge Kozinski of the Ninth Circuit put it, it’s time for courts to get with the times and take advantage of the different technologies available to us.  Critics argue that the written transcripts and courtroom sketches are enough for the public to work with.  But I think it would be a sorely missed opportunity not to be able to watch trials through a full video presentation (though I do agree that camera footage needs to be monitored so that courts don’t reinforce the circus stereotype associated with media trials).

Many of the concerns listed here are minimized by several elements inherent in the pilot program.  First, the cameras are not media cameras, but will be operated and regulated by court staff.  And the equipment will be unobtrusive (like the “eyeball” cameras you often see implanted in the ceilings of some stores- not like the bulky cameras we have fashionably pictured here).  Courts will also limit the recordings to cases that don’t involve sensitive issues like child abuse, sexual assault, or trade secrets.  Lastly, to help with privacy concerns, all participants in the trial should consent to the videotaping before it occurs.

And one aspect that isn’t mentioned in the midst of this debate is the prospective advantage for law students.  I remember during law school, we watched some very limited footage that was supposed to help us students with our litigation skills.  But it would have been nice to be able to independently browse different trials to see how lawyers actually argue in different types of case settings.  Also, having a database of actual trial footage can help those who may be contemplating a law career make a choice of whether to invest in law school or not.

On a final note, I’d like to leave you with bit of legalese that I found very amusing.  The legal phrase “in camera” comes from the Latin word meaning “chambers”.  It refers to a trial that’s conducted in private without the public watching and without coverage by the press.  How ironic!  If this new pilot program catches on nationwide, the definition of “in camera” might well be turned on its head.

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Wage and Hour Lawsuits are on the Rise

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It looks like plaintiffs’ lawyers have their work cut out for them in a new breed of lawsuit that’s quickly grabbing hold of the nation.  “Wage and Hour” litigation is getting bigger, especially in federal court.  Wage and Hour claims typically involve situations where an employer fails to pay an employee minimum wage or overtime pay according to the standards set out in the Fair Labor Standards Act (FLSA).

Wage and hour claims are different from your usual employment lawsuits involving harassment or discrimination- those tend to involve only one employee in a somewhat isolated incident.  In comparison, these newer wage and hour claims we’re seeing can involve an entire class of employees- sometimes hundreds or even thousands working for the same company.  These class action suits can create huge chunks of losses for the employer, with many of them ending in settlements of anywhere from $10 to $90 million dollars.

Federal Judicial Caseload Statistics reports that well over 6,000 wage and hour lawsuits were filed in each of the years 2011 and 2010.  Overall, the federal courts have seen a 325% increase in these types of claims since 2001.  For anyone familiar with legal trends, this represents just an absolutely massive increase in labor cases.  These figures actually should raise some concern, especially for major employers who might be negatively affected by this new trend.  Why the sudden spike in wage and hour claims?

For starters, legal analysts suspect two distinct factors that may be linked to the increase in wage and hour claims, both of which have to do with exemption laws (if an employee is classified as “exempt” they may not be entitled to overtime pay).  First, it’s possible that many employers have been intentionally misclassifying employees as exempt in efforts to cut company costs.  Though this is illegal, with today’s economy, some outfits have been desperate enough to engage in this type of conduct.

The second, more complicated factor is that employers might be lacking a thorough understanding of wage and hour laws.  Exemption laws are difficult to navigate already; combine this with the many changes in the workforce that we’ve seen in the past decade, and it starts to become clear why so many employees may have been misclassified.  For example, wage-hour laws are not at all clear on many new developments like:

  • Alternative Work Weeks:  A good chunk of the working sector doesn’t follow a rigid, 9-5, M-F schedule anymore.  More and more people are working odd weeks, like M-Thu, and Sat., or weeks involving 10 hour days.  Nurses and other care providers are especially known for working non-standard shifts.  Exemption laws also don’t specifically define what a “working day” is and so it’s getting more difficult to monitor employee hours.
  • Odd Management Structures:  Exemptions apply especially to persons working in executive, administrative, or professional positions.  In practice, more and more businesses are actually being run by persons with titles like assistant managers rather than actual managers.  This makes it difficult to classify managers, since exemption eligibility is based on duties performed and not generic job descriptions.
  • Interns:  Full-time unpaid internships are particularly prone to employment abuse, as we’ve blogged about in the past.  Many have debated about whether interns should be paid minimum wage, and some employers may be engaging in FLSA violations with regards to their interns.
  • Work-related Technological Advancements:  Technology always seems to throw a wrench in the legal system.  Here we’re talking specifically about mobile devices that allow a person to put in work while away from the office.  It makes it much more difficult to determine exemption status if a worker is constantly performing work tasks while away from the office.

At first I thought this was just another case of the frivolous lawsuit craze that is (sadly) characteristic of our so-called “litigious society”.  But upon closer examination, to me it looks like something more serious is going on here.  I mean, there are literally thousands of these cases being filed, all of them having to do with FLSA and exemptions.

Yes, these people need to be compensated for lost pay, but I don’t think this is a case of bandwagon litigation.  Something seriously needs to be done on the employers’ parts, such as getting a better grasp of wage and hour laws.  Part the danger here is that one employer’s mistake or intentional disregard of the law can affect entire classes of workers.  And also the law itself needs to be updated in this area.  The Fair Labor Standards Act is well over 70 years old, which makes it a dinosaur by legislative standards.  No one has done anything in a long while in terms of incorporating information-age changes into FLSA.

If you actually think about it, business owners and managers need to start protecting themselves against wage and hour claims, because they can be deadly to a company, especially class action lawsuits.  We’re talking major, major losses for corporations, not to mention the time and frustration involved for laborers.  If these trends continue (which it looks like they will), more and more lawyers might be billing for overtime pay as well.

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Is Online Gambling Legal? A Review of Current Laws and Government Enforcement

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When most of us hear the phrase “Online Gambling” or “Internet Gambling”, we usually picture the average websurfer casually placing a few bets on some rounds of Texas Hold’em.  Indeed, there are countless websites dedicated to online gambling and I’m sure we all know someone who visits them.  Some folks are genuinely addicted to online gambling, much like other forms of “digital afflictions” like video game addiction.

But what are the stakes involved with online internet gambling?  Is it legal?  Can you get in trouble for gambling online?

Here’s the deal: all gambling, including online gambling, is regulated by both state and federal laws.  Federal laws governing online gambling don’t really focus on the persons patronizing the website (i.e., the gamblers). Rather, they tend to provide penalties for the organizations that maintain online gambling websites.  Current statutes usually aim at the community concerns surrounding gambling operators, namely: money laundering, false advertising, and funding criminal enterprises.

The most prominent federal statute governing online gambling is the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA).  The UIGEA basically prohibits financial institutions and banks from handling transactions associated with online gaming accounts.  There are also various provisions regarding advertising for online gambling websites.  Most importantly, the UIGEA defines “unlawful internet gambling” as “placing, receiving, or otherwise knowingly transmitting a bet by means of the internet where such bet is unlawful under any law in the State where the bet is made”.

So the answer?  It basically depends on what state you’re in.  Now, most states have embraced the notion of online gambling.  But a few states have some form of “express internet prohibitions” on gambling, meaning it’s illegal in that state.  These states are:  Illinois, Indiana, Louisiana, Montana, Nevada, Oregon, and Washington.  For example, Washington has recently made online poker betting a felony.  So although prosecution is actually rare, you could get into trouble with state authorities for online gambling, but probably not federal authorities.

Another thing about online gaming law is that there are all kinds of different types of gambling games online.  Besides your normal poker sites, there are also bingo websites, lottery websites, casino-type games like roulette and blackjack, and now even online mobile apps for gambling.  But one type of online gambling that’s definitely illegal is interstate sports betting, which was outlawed by the Federal Wire Act (“Wire Wager Act”).

The recent shut-down of online gaming site is, in my opinion, an excellent example of the way online gaming regulation works.  Last February, the website was ordered to fold and shut down on various counts, including: conducting an illegal online sports gambling operation; money laundering; using banks to cover payout transactions to customers; and violating advertising regulations related to online gambling.  They are currently facing hefty criminal fines and have had their web domain name revoked (on an infringement issue).

So these Bodog guys apparently hit up nearly every violation in the books.  But note that none of the patrons of the website were targeted, only the website founders and operators.   And that’s basically how these laws tend to work in the real world of virtual gambling.  The bust follows on the heels of a major investigation last year in which three of the top U.S. poker sites were charged with fraud and forked up more than $3 billion in seized assets (U.S. v. Sheinberg, 2011).  Again, no real mention of consequences for online gamblers.

To me, these laws don’t really, truly address what I think is the main problem with online gambling- it’s easier to get addicted than your standard casino gambling.  Something called “instant gratification” is a major factor with online gambling, and the online competitor doesn’t need to travel anywhere except the nearest computer for a quick fix. So just like any addiction, online gambling can completely ruin a person’s life, maybe more so than in-person games.

But given the scope of the problem, and how new online gambling is, the current regulation scheme is somewhat understandable.  It’s very similar to the way drug laws are enforced- authorities would rather go after the major dealers (excuse the pun), instead of spending time and resources trying to track down individual users.  And there’s a lot to online gambling that’s still being debated in the legislatures.

So, all that being said, if you have your own online gambling itch, chances are you won’t get into trouble for your online activity, so long as you completely (and I mean completely) avoid online sports betting.  That’s one hand that’s just too risky to bet on.

On the other hand, if you’re currently operating an online gambling website, or are thinking about doing so, that’s where you need to start getting concerned.  After all the investigations within the last year, it looks like the gaming authorities are upping the ante and going after the operators, the online pit bosses, who are the real high rollers here.

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Twitter Jokes, Deportation, and National Security

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You may have recently heard about two British tourists who were deported from America for posting some questionable jokes on Twitter.  A few weeks ago Leigh Van Bryan and Emily Bunting were flagged at the airport by the Department of Homeland Security (DHS).  DHS stated that their Twitter jokes referenced plans to “destroy America”, and “digging up Marilyn Monroe’s grave”.

The two friends were detained and questioned by agents for 12 hours regarding the suspicious tweets.  Bryan and Bunting argued that the phrase “destroy America” is simply British slang for partying in the U.S.A., and the Marilyn Monroe reference was a joke from the T.V. show Family Guy.  After further questioning yielded no evidence, the two were ordered to return to the U.K. and were told that they must re-apply for a visa before they could return to the U.S.

Now, this might seem like a comical incident, but a lot of folks are up in arms over the DHS’ harsh treatment and seemingly unnecessary overreaction.  A lot of people reacted by asking questions like, “Why deport these people?  They can’t single-handedly destroy America!!!”

And indeed, this incident raises a lot of questions for me.  I mean, how far does this national security business go anyway?  Can’t we tweet in peace?  What exactly is a “threat to national security” that will subject a person to removal / deportation?  We all know that people can obviously be deported for conduct like acts of terrorism or egregious crimes.  But posting on Twitter?  I mean, come on!

Recently I read a very well-written (and somewhat lengthy) article on the question of “What is Homeland Security?”  In this article, Christopher Bellavita discussed the origins of ideas like “homeland security” and “national security”.  I found this article to be pretty helpful for understanding puzzling incidents like this deportation case.  These ideas are important to consider, especially because they have definite impacts on our current legal standards in areas like immigration law and privacy law.

Bellavita explains that our nation only started really seriously speaking of national security in 2001 after 9/11.  Prior to this, we spoke of “defense” as in “Department of Defense” or “national defense”.  Now the notion of national defense is a pretty narrow one.  Defense speaks of external threats- specifically, foreign military invasions where the enemy can be clearly identified.  This is your classic capture-the-flag, Cold-war missile mentality where the threats belong to identifiable camps.

In contrast, “Homeland Security” is a broad umbrella term encompassing both internal and external threats to American safety.  It involves the collective efforts of the military, the FBI, law enforcement departments, immigration enforcement, and many other agencies.  It even covers threats like natural disasters and catastrophes.  With a “security” mindset, it may not be so clear as to what the threat is.  The overall aim is not to identify any specific military enemy, but rather to maintain an atmosphere of safety and order inside our borders.

So we can say that people who react by saying, “they couldn’t possibly destroy America by themselves” are probably operating from an older “defense” standpoint (or, they have very high expectations for single-man armies from watching too many Rambo movies).  That is, it makes no sense to deport persons who don’t pose a threat in the traditional, militaristic way- they didn’t belong to any military force, they didn’t pack any weapons, and they weren’t wearing uniforms or badges.

But from a “national security” standpoint, Bryan and Bunting’s deportation might be just a tad more understandable.  If the effect of a tweet is to create an overall panic in the American public, then that might be considered a threat to national security, even if it’s not as overt as say, a missile attack.

The Department of Defense has been around since the 1940’s, whereas our government only recently implemented an Office of Homeland Security in 2001 after 9/11.  But many folks still haven’t caught on to the switch from defense to security.  I think our situation here with the Twitter jokes clearly illustrates this.

Don’t get me wrong- in my own opinion I think that either way you look at it, defense or security, this is pretty much an overreaction by the DHS.  It probably shouldn’t have taken all of 12 hours to find out whether these were some truly bad guys.  Maybe we all need to watch more Family Guy, or brush up on our British slang.

And one thing is clear- I spy about a million definitions of “terrorism” floating around in all the laws and acts out there.  As “national security” interests expand, the definition of terrorism needs to be more clear, not less.  For now, here’s a list of “sensitive words” to avoid while tweeting, since they’re apparently being monitored by the guys over at DHS.

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Bought a Zoo? Time to Learn About Strict Liability

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Last October, a fascinating news story involving escaped animals created an uproar in the media.  In Zanesville, Ohio, a man named Terry Thompson opened the cages of over 50 exotic wild animals that he owned and kept on his private reserve.  The escaped animals then proceeded to march around town, creating a literal urban safari a la Jumanji, causing much fear and alarm for the town’s residents.

Some of the wild animals included leopards, black bears, 300-pound Bengal tigers, grizzly bears, and lions.  Yikes!  Fortunately, no one was injured, although sadly all of the beasts had to be put down by local law enforcement.  To make things more bizarre, Thompson ended up taking his own life by gunfire shortly after releasing the animals.  Apparently, he had more than his lion’s share of personal problems.

This incident raises some questions in my mind about the laws governing the ownership of wild, dangerous animals.  Just what are the rules for keeping wild animals?  What type of precautions must keepers of wild animals take?  And when does a person become liable for an escaped animal?

According to most state laws, the care of wild animals like lions, tigers, and bears falls under a category known as “strict liability”.  Strict liability is somewhat unique, and stands like a lone wolf in the realm of civil tort law.  Basically, strict liability rules impose civil liability on a person, even if they didn’t intend to commit a violation of law.

For instance, an owner of wild animals can be held liable for property damage or injuries simply if their wild animals escape from their cages, even if they took the necessary precautions to keep the animals locked in.  So, in the Zanesville, Ohio case, Mr. Thompson could have been held liable even if he hadn’t opened the cages, and even if the animals escaped without his assistance.  Strict liability principles dictate that wild animals are just too dangerous, and their keepers will be held to a much higher standard of care than normal.

Strict liability laws exist to prevent unnecessary injuries and property damage.  The logic is that the animal or product is more dangerous than usual, and the owner is creating a high degree of risk to the surrounding community.  A person probably wouldn’t be subject to strict liability laws if they kept a harmless animal like a rabbit.  But they certainly might be if they’re keeping a deadly, lethal bear capable of inflicting major bodily damage.

Strict liability principles can also involve other matters besides wild animals, such as the transport of super-hazardous materials (e.g., oil spill claims), and certain defective products.  But are they fair?  I mean, is it ok to hold someone liable even if they didn’t intend to inflict harm?  Many think that strict liability laws are effective, because they force people to think twice before engaging in risky activity or before obtaining highly dangerous items.  They can sometimes result in very beastly legal consequences if someone gets hurt.

But I think that strict liability laws are somewhat toothless, for a few different reasons.  To begin with, most people probably don’t even know about strict liability rules.  Your average Joe or Jane usually won’t be thinking about strict liability on an everyday basis.  And secondly, strict liability laws only provide a remedial mechanism after something dangerous has already happened, like an oil spill or a products liability injury.

I agree very strongly with the residents of Zanesville, who complained that legislation simply isn’t, well, strict enough for owners of escaped exotic animals.  A more thorough screening process needs to be implemented for persons who want to import wild animals for private keeping.  For instance, Mr. Thompson may very well have had a mental health issue- such an important factor should have been considered before he was allowed to even get the animals.

While it may seem that strict liability rules are abstract and inapplicable, the reality is, some people might be subject to these laws without being aware of it.  For example, I know many people who are fond of keeping pets like venomous snakes and spiders.  These types of pets may expose the owner to strict liability if the animal escapes.  Even certain types of fishes and some dogs can be included under strict liability rules, so it’s good to know the implications of owning such pets.

With all that said, I wish you a safe, liability-free holiday season and an awesome 2012.  Feel free to go ape at your white elephant parties, but do think twice before going out and buying a zoo for the holidays to rescue animals.  It might seem like a novel showcase of good will, but it could get you into trouble, even if you didn’t mean to.

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