Monthly Archive for May, 2010

The Growing Lawsuit against Health Care Reform Measures

Many of you are already familiar with the health care bill that was signed by Obama into law in March.  We’ve recently posted a blog on the various responses that the law set off.  Like a knee-jerk reflex, immediate response to the law came in the form of numerous lawsuits, numbering about a dozen or so.  Among the most prominent of the lawsuits aimed at striking down the health care law is a lawsuit filed in a Florida federal district court by prosecutors from 13 different states.

Since the passage of the bill, the lawsuit has grown, as seven other states, as well as the National Federation of Independent Business (NIFB), have joined in the suit against the healthcare reform bill.  This makes a total of 20 states which are opposing the massive reform law, all but one of which are Republican in their leaning: Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, South Carolina, South Dakota, Pennsylvania, Texas, Utah and Washington.

The lead plaintiff for the suit is Attorney General Bill McCollum of Florida.  The AG’s suit outlines four arguments challenging the law’s constitutionality.  Of these arguments, the central focus of the debate will be whether the Commerce Clause of the Constitution grants Congress the power to pass a law which is so broad and sweeping in its scope of intrusion into personal affairs.

As the details of the lawsuit emerge, legal experts are split in their opinions as to whether the suit will ever reach Supreme Court, and whether it will succeed or not.  Lawyers who are in favor of the new health care law argue that the law is constitutional because the Commerce Clause grants Congress the power to regulate activities which, in their “aggregate” (or accumulated effect) will affect interstate commerce.  These experts contend that if people do not obtain coverage, it will inevitably affect the price of health insurance for citizens throughout the U.S, and thus should be covered by the Commerce Clause.

Those who are opposed to the law, such as AG McCollum, will be arguing that the mandatory insurance clauses of the law are unconstitutional simply because what Congress is attempting to regulate is not an “activity” at all in the legal sense of the term, and thus is not in the stream of commerce.  In the text of the Florida lawsuit, McCollum and others point out that in effect, people will be subjected to penalty not according to any action they take, but rather for their “inactivity”.  This is because the law proposes to mandate additional taxation for businesses and citizens who do not purchase health insurance premiums.

I am particularly interested in the debate as to whether not purchasing health insurance amounts to “inactivity”.  In a very well-documented opinion report on the constitutionality of mandatory health insurance, Simon Lazarus contends that the “inactivity” argument is mere semantics and verbal gimmickry.  He writes that people who don’t purchase health insurance are not “doing nothing”, but rather are taking the conscious action to skip out on health care because they believe they won’t need it.

I strongly disagree with this rationale.  I don’t think that the average American believes that they are taking a conscious action by not buying health insurance.  I think what’s going on is that a large sector of the American economy cannot even really afford to buy health insurance.  It’s not that they are choosing to forgo coverage- it’s more like many don’t really have a choice because they cannot afford it.  I’m sure if people had the resources, they’d rather purchase the premiums than remain uncovered.  After all, isn’t that the whole reason behind implementing new health care strategies, because people can’t afford it?

That being said, I still think that the lawsuits will probably not hold up in court, mainly because courts do have long history of regulating personal activities under the commerce clause.  But it does make sense to me why the legal challenges aimed at the new law characterize the reform as “an unprecedented encroachment” on state sovereignty.  It’s not only because of the broad scope of health care implications, but because they are arguing that Congress is attempting to regulate inactivity.  And “inactivity”- if that’s what you choose to call it- has never really been regulated by Congress before.

To Pro Se Or Not To Pro Se: The Logic Behind Representing Yourself At Trial

No one really likes lawyers.  The only time most people generally have to talk to one is when they’re in some sort of legal trouble, and even then for most it’s an ordeal.  I mean, who want to have to recount some horrible event in their life to some stranger?  Also, there’s a general perception that lawyers are elitists and it can be intimidating to meet with one.  Not to mention the fact that legal representation can often be incredibly expensive.

So what’s the alternative if you’re stuck in a legal problem and don’t want to pony up for an attorney?  Well, you can always choose to represent yourself, or as we in the legal world call it, acting as a pro se litigant.

But is that really a good idea?  Sure, there are a ton of stories about bad lawyers, which by themselves may be enough to convince one to go it alone.  Also, some would say the amount of intelligence it takes to be an attorney is no different than that of any other occupation requiring extensive critical thinking skills.  If the latter sentiment alone was the only barrier keeping people from being a good lawyer, I suspect that the legal field would look a lot more different than it does today.

Unfortunately the sad truth of the matter is that for most pro se litigants, more often than not, their cases end up like this, with the vast majority of pro se litigants losing their cases.  That last link contained a quote from the judge hearing a case against a man accused of murdering his girlfriend.  The 62-year-old defendant, Robert Camarano, chose to represent himself in his own murder trial and was publicly reprimanded by the judge, who said:

“You don’t know how to ask a question…You don’t know how to offer things into evidence. You keep making stupid speeches. You keep saying you are good at this. You are not. I do not say this to insult you.”

Very, very embarrassing indeed.  Not only was that quite a hurtful thing to say, but you’ve got to believe that the defendant’s chances of winning his case must be really bad after the judge made that speech in front of the jury.

Tragic hilarity aside, what’s important to highlight from the judge’s speech is that it really underscores the greater reason why it’s so tough to represent yourself in court.  The fact of the matter is that being a lawyer in America or pretty much in any other developed country in the world requires a vast amount of knowledge regarding proper legal rule and court procedures.  Areas of knowledge like the federal rules of evidence, civil and criminal procedure are generally very foreign and unnatural concepts created for reasons of fair, speedy, and efficient justice.

This all means that for the average non-law school graduate pro se litigant, arguing their own cause in court becomes a battle between facts and procedure.  As aptly pointed by the judge in Camarano’s case, the divide between lawyer and pro se litigant often comes down to the first focusing on the proper way to argue a case versus the latter making “stupid speeches” based on pure logic.  And please note that when I say logic, that’s not always the case for pro se litigants (note the story about the accused rapist in the latter half of that link).

Thus, as I mentioned earlier, if intelligence was the only obstacle keeping people from representing themselves and actually winning their cases, pro se litigation might not be such a bad idea.  However, this isn’t to say that pro se litigation doesn’t have a place in our justice system.  There are many instances where it can be used effectively and without must difference than when hiring a lawyer.  Small claims and traffic court come to mine immediately.

For instance, a very straight-laced friend of mine recently got his first traffic ticket the other day.  Being the overly neurotic type that he is (as that’s probably the only type of person in my opinion that can go through most of their life without ever being issued one), my friend freaked out at the notion of having to go to traffic court.  He wanted to know if he should hire a lawyer, to which I replied that it was a personal decision on his part, but if I were him, I wouldn’t waste my money.  Judges in traffic court have to hear a lot of cases, I told him, and having an overly argumentative attorney may very well hurt his chances instead of helping him get his ticket set aside.

So what should you do if you have to make a choice between hiring a lawyer or going pro se?  Well, like I told my friend, the answer to that question is a personal one.  There’s a reason the United States Constitution protects a person’s right to choose to defend themselves.  Sometime people can be better off if they do.  However, please just use some common sense.  In smaller cases, you’re probably okay, but in the bigger ones (like murder or even more serious misdemeanor charges) try to go with an attorney.  It’s still up to you, but do you really want to end up like our friend Mr. Camarano?

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Child Support and Orthodontic Expenses

“Mommy I want braces!”  I think we all know the answer to this question: “They are just too expensive!”

Pretty straightforward, but what if the matter is complicated by legal issues such as child support payments?  And what if the child really needs them to straighten their teeth?

Not surprisingly, a common legal inquiry we get is whether a non-custodial parent must pay for orthodontic expenses in a child support arrangement.  The short answer is, it depends on if the child really needs them.

Generally speaking, parents who make child support payments are also responsible for covering any uninsured medical and dental expenses.  So the question becomes, “are braces medical expenses for the purposes of child support payments?”

Of course, this will vary by state, but most child support rules are codified in state statutes which require reasonable and necessary medical and dental expenses to be divided in proportion to the parents’ gross income.  So let’s say if one parent’s income is the equivalent of 70% of the parents’ combined income, then they will be responsible for 70% of the orthodontic bill.

Cases involving this issue are somewhat sparse, but fortunately they seem to be saying the same thing:  parents are required to include payments for their child’s braces if they are a “reasonable and necessary” expense.

It helps to think of it as a sliding scale or a spectrum: the more the braces resemble a necessary medical expense, the more likely it is a non-custodial parent will have to render support payments for the bill.  However, the more the braces resemble a cosmetic expense, then the parent won’t likely be required to cover the expense.

This can be pretty clear cut, though- if the child’s case involves any sort of pain or discomfort, and not getting braces will mean injury to another body part such as the face or neck, then I’m quite sure that braces will be considered a necessary medical expense.  But if the child only wants them because they look cool, then I’m sorry: the laws just don’t enforce payments for purely cosmetic expenses.

Court cases involving these types of disputes are examined on a case-by-case basis, but courts will typically enforce the statutory “reasonable and necessary” requirements.  For example, a 2004 North Carolina case, Billings vs. Billings, required the non-custodial parent to cover their portion of orthodontic expenses because the braces were deemed a “necessary medical expense”.  In that case, the child’s dental condition was causing pain to her jaw and face.  Like most cases, the Billing’s judgment involved uninsured expenses that were over a certain amount (in this case, over $100).

Another case, Barret vs. Kantz, is a good example of how courts usually decide these disputes on a case-by-case basis.  In that matter, the mother of the children was seeking to enforce child support for two of their children’s braces.  However, the court found that the father had to pay for only one of the child’s braces, and not the other’s, because one child’s dental case was more “medically urgent” than the other’s.  So, even amongst children who are siblings, courts will not award a general payment but will tailor the support payments according to real medical and dental needs.

So, what can be done if you are in this situation?  Here are some tips to avoid future conflicts:

  • Ask your attorney to write such expenses specifically into the child support order if you think that orthodontic expenses are going to be an issue in the future.  For example, “the paying parent will pay ___ % for any orthodontic or dental expenses.”  Do this preferably at the outset.  Courts are likely to honor such tailored provisions because it shows that the parent is attentive to their child’s needs.
  • Get insurance for your child, whether you are the paying spouse or the custodial spouse. Most child support statutes deal only with uninsured expenses, so if the child is insured, then orthodontic expenses won’t even become a legal issue.  Think dental or medical insurance is expensive?  It sure is, but is it more expensive than a lawsuit?  I think not!
  • Make your support payments for medical and dental expenses if you are required to do so! Appealing a case is difficult to do in child support cases, because if a judge makes a ruling, the burden is on the appealing party to show that the court made an error in calculating payment amounts (this was true in the Barret v. Kantz case above).  Again, the additional payments may be expensive, but not more expensive than a lawsuit!

I think this last point is really the most salient.  After all, if the child truly needs medical or dental attention, then by all means they are entitled to treatment.  So even if it means some sacrifice on the paying parent’s part, it is in everyone’s interest to muster their best efforts to make the payments.  And, it will probably be the more cost-effective route in the long run.

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Florida Case Addresses Miranda Warnings

In case you didn’t know, Miranda warnings are those statements that the cops utter after arresting someone: “You have the right to remain silent. Anything you say may be used against you in a court of law.  You have the right to an attorney…etc.”  The law does not specifically state exactly how to say the Miranda warnings, but the police do need to communicate the basic points to suspects before subjecting them to questioning.  So, how clear do the warnings need to be?

Last February the Supreme Court issued a ruling upholding Florida’s Miranda version, despite the defendant’s complaints regarding the clarity of the statements given to him.  The defendant, Kevin Powell, was arrested in connection to a firearm he had purchased.  Prior to a police interrogation, Powell had signed a Miranda statement that referred to his right to a lawyer.  Powell asserted that his rights were violated because the Miranda device he had signed did not clearly inform him that he had a right to a lawyer during the interrogation.

In a majority 7-2 decision written by Justice Ginsburg, the Florida v. Powell court concluded that Powell did receive sufficient information regarding his rights to a lawyer during the interrogation.  In their typical technical fashion, the judges picked apart the language used in the Miranda warning, which read, “If you cannot afford to hire an attorney, one will be appointed for you without cost and before any questioning.  You have the right to use any of these rights at any time during this interview”.

As you can see, Powell understandably thought that the warning only referred to the lawyer being present before any questioning, and not during.  But the court reasoned that the phrase “the right to use any of these rights at any time during this interview” should have put Powell on notice that he was entitled to a lawyer during the interrogation as well as before.

Is this really fair for Powell?  Talk about attention to detail.  I’m not sure if your every day citizen would reach the same conclusion as the court.  In a very thorough column addressing the clarity of Miranda warnings , Sherry F. Colb explains how the average person would normally interpret the warnings to mean.

She says that most people would interpret the warnings to mean that as a suspect, they are entitled to have a lawyer assist them in court at trial.  In other words, the majority of people usually correlate the “you have a right to a lawyer” statement with trial, and not with pre-trial matters such as police interrogations.

Most people don’t really understand that they have a right to a lawyer during interrogations and not just after trial has started.  This is probably due to the fact that, sad to say, we get most of our ideas about legal rights from T.V. shows and movies.  And in most movie scripts, after the suspect is arrested and Mirandized, the story cuts to the next scene where a lawyer is visiting them in jail or is arguing in court.  Personally I don’t recall ever seeing a movie character invoke their Miranda rights in order to have a lawyer present during an interrogation.

Now I’m not saying that movies need to follow legal procedures to the tee (that would probably take all the fun and drama out of them), or that they justify a lack of knowledge.  But the media is a good reflection of the general perception of what Miranda warnings mean, and we can see why Powell’s argument is compelling.

In other legal news involving Miranda warnings, the Supreme Court ruled that Miranda warnings are not a bar to the police requestioning a suspect even after they have invoked the right to a lawyer.  In another 7-2 decision, also issued last February, the justices in Maryland v. Shatzer ruled that the police are allowed to contact a suspect again, so long as at least 14 days have passed since the initial interrogation and Miranda warnings.

Several attorneys differ in their opinion on the Shatzer ruling.  Some say the court might as well do away entirely with the Miranda requirements if police are free to question them later anyway.  Other point out that the purpose of the new 14 day period is to allow questioning after other evidence has had time to come in, such as DNA samples.

Finally, another Miranda case, Berghius v. Tompkins is currently still being litigated in Michigan.  This time the case questions whether silence amounts to a waiver of Miranda rights.  In particular the case involves the requirement that waivers be made “knowingly and intelligently”.

Wow.  It’s been quite a year for the police and their Miranda warnings.  All this litigation seems to be making things more muddy rather than clarifying what needs to be done.  I think to myself, “why isn’t there a standard version for the warnings anyway?”  If I had the task of creating a version of the warnings, it would probably read: “You have the right to an attorney.  Do you need an attorney to help you understand your rights to an attorney?”

Can Subway Trademark a Unit of Measurement?

Also, can they sue a mass transit system for referring to itself as a “subway”? That’s for another post, I guess.

To the topic at hand, the owners of the Subway chain of sandwich shops is sending out cease-and-desist letters to other sellers of sandwiches who use the term “Footlong” to describe the length of sandwiches they sell.

The main argument behind the letters appears to be the idea that they have spent a lot of money on advertisements featuring the word “Footlong.” Of course, under trademark law, this isn’t nearly enough to create trademark protection in a word, phrase, or image.

Here’s a basic refresher on trademark law – if you own a business which sells a product or service, you obviously want to have some shorthand for describing your product or service, and identifying your business as its source, as well as differentiating it from your competitors. Trademarks allow you to do this.

For example, we’re all familiar with Coca-Cola™. When you buy a bottle of the stuff, you know what you’re getting, based pretty much entirely on the name (assuming that you, like most people, have drunk it before). This is the case because only the Coca-Cola Corporation can use the “Coca-Cola” name to identify its products. If everyone were allowed to use this name, it would lose all meaning, and you’d never know what you’re getting when you buy something called “Coca-Cola.” One bottle bearing the name could contain a tasty, if unhealthy, beverage, and another could have dishwater in it.

Trademark law allows a company that has used a word, phrase, or image to identify their product to use it exclusively, under certain circumstances. This protects consumers by ensuring that there are some legal prohibitions against selling counterfeit goods, and it protects businesses by letting them control the use of their name, and preventing others from stealing any goodwill they’ve worked to build up.

However, in order for a word to be eligible for trademark protection, it has to be distinctive. This makes sense: we wouldn’t want Subway (for example) to be able to monopolize a descriptive term like “sandwich.”

In this case, it seems very unlikely that Subway, if it actually decides to go through with legal action, will succeed. There are certain classes of marks that can never receive trademark protection. This includes marks that are purely descriptive, and do nothing to indicate the source of a product.

“Footlong” is used to describe the size of a sandwich that Subway sells. We have been measuring things in feet for hundreds of years, and people have probably been using feet and inches to measure sandwiches for, well, I don’t know how long. But probably for a long time.

There is absolutely nothing in the phrase “Footlong” that uniquely identifies Subway or its products. If, on the other hand, they had decided to identify their foot-long sandwiches with something completely arbitrary or fanciful, they’d almost certainly be able to get trademark protection, assuming nobody did it first.

This is part of a broader trend I’ve noticed: knee-jerk threats of legal action when somebody does something we don’t like. We’ve seen it in the over-criminalization of many areas of law, when the problems being addressed could easily be solved through the civil justice system, or other means.

We’ve also seen in recent years some pretty absurd trademark claims being filed by various corporations, including McDonald’s sending cease-and-desist letters, and sometimes filing lawsuits, against almost any business which uses the “Mc” prefix in its name, even if that’s simply the name of the owner or founder of the business.

That’s just one example of many. Honestly, these large companies must have quite a few good lawyers on staff. Do they honestly believe that these outlandish claims have any merit? Probably not.

More likely, they’re hoping that a threat of legal action from a large company is enough to scare off much smaller competitors (or, in some cases, businesses that aren’t even in direct competition). If Subway succeeds it scaring businesses from using simple, descriptive terms like “footlong”, it has just succeeded it making it much more difficult for those businesses to advertise their products.

If they succeed in court (which, again, seems very unlikely, if it even comes to that), many other small to medium-sized businesses will take note, and perhaps stop using similar terms.

Conduct like this defeats the purpose of trademark law, which is meant to protect consumers as well as businesses. Trademark law is meant to create a somewhat even playing field in the business world, by ensuring that, for good or ill, a company has control over its name, and that they can’t blame anyone but themselves if their brand becomes associated with an inferior product.

This type of conduct does nothing to advance that objective, and is actually counterproductive: attempting to monopolize descriptive terms does not create an even playing field, and actually tilts it in the monopolist’s favor.

Hopefully small businesses will start calling these kinds of bluffs, and maybe large corporations will stop doing this.