[Insert references to Step-Saver v. Wyse Technologies here]

However, I want to focus on the issue of governmental immunity. Here is a relevant excerpt from the article:

On June 11, 2005, Middleton, who had been a Jackson police officer since 2003, was working a 2-10 p.m. shift. After dropping a prisoner off at the Hinds County Detention Center in Raymond, he headed north on Mississippi 18 near Siwell Road, according to police statements.

At the same time, around 10:44 p.m., Harris was heading in the opposite direction. Harris, driving a 2000 Pontiac Grand Am, tried to turn left onto Siwell.

Witnesses told police investigators that Middleton was driving at a high speed without his emergency lights or siren on. They said he ran the traffic light and crashed into Harris’ vehicle.

Middleton was indicted in October 2005. After a Jackson Police Department Internal Affairs investigation, he left the department.

Harris’ family has a wrongful death lawsuit pending in Hinds County Circuit Court against Middleton and the city of Jackson. No trial date has been set.

Assistant City Attorney Pieter Teeuwissen said the city’s position is that it is prohibited by law from paying the Harris family’s claim.

Teeuwissen said the state code says “an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.”

Although the offense has been wiped from Middleton’s record, he pleaded guilty to a criminal offense, Teeuwissen said.

Sounds reasonable, right? You may not agree with the law, but there it is, black and white. A government employee is not acting within the scope of his employment if he is engaging in a criminal act. Middleton plead guilty to a criminal charge, therefore he was not acting within the scope of his employment, right? Not quite.

Whether the reporter considered it unimportant, or whether Mr. Teeuwissen conveniently omitted it from his interview, the actual statute reads a bit differently from the quote in the article. Here is Miss. Code Ann. § 11-46-5(2) in its entirety:

For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations. (emphasis added)

That changes the landscape a little, does it not? Respondeat superior and governmental immunity may be complicated issues, but there is a huge difference between a government employee knocking over a 7-11 and a police officer on duty, in uniform, in a marked government police cruiser returning from a duty of his employment driving recklessly, running a red light, and killing an innocent motorist. One falls under the statute and the other doesn’t.

The City should pay through the nose for this one.

I am all for a total ban on smoking, but I think to be reasonable that the law should ban smoking anywhere that children may be present. It should be allowed in stand-alone bars, nightclubs, and casinos. It is fair that smokers have somewhere to go, but they should not be allowed to smoke around children. And I should not be forced to keep my child at home to avoid their smoke. It is time for smokers to have some responsibility.

This is a very interesting statement. It implies that tobacco smoke and children should not exist in the same place at the same time. Assuming for the moment that this is true, why prefer children over smoke in Red Lobster? If smoke is irritating, what about screaming, crying babies and poorly behaved children? It’s almost impossible to relax and enjoy a good cigar after dinner with all the annoying children carrying on. So again, why not pass a law prohibiting children from restaurants? Because it would be absurd, that’s why.

There once was a day when politicians and judges would refuse to hear these issues, preferring to let the market self-regulate. In this age of state paternalism, that seems to be an antiquated notion. In the old days, property owners had the right to allow or prohibit perfectly legal behavior on their premises. If you didn’t like smoke and a non-smoking section wasn’t good enough for you, you could register your displeasure and not come back. If enough people did the same, the restaurant would lose business and be forced to reassess its position.

Likewise, if a restaurant voluntarily prohibited smoking and you like to enjoy a cigar or pipe after dinner, you could register your displeasure and eat elsewhere. In either case, property owners were free from government intrusion and the market would regulate itself.

But not anymore. Now, if there’s something that annoys you, you don’t have to be content to merely utter “there oughta be a law…” Now, you can actually get one. If you’re annoying enough.

The standard for allowing the case to go forward should be higher than mere plausibility, the government said, pointing to recent Supreme Court decisions, including one in an antitrust case last year, that raised the standard for the evidence that plaintiffs must provide at the initial stage in order to withstand a motion to dismiss their lawsuit.

The unnamed antitrust case is a reference to Bell Atlantic and while the NYT article implies that the Government is getting greedy and arguing that even plausibility is insufficient, the text of the appeal makes it look more as if the Government is arguing that even though the Second Circuit couched its opinion in terms of plausibility, the evidence at this early stage is nonetheless insufficient under Bell Atlantic.

The case is styled Ashcroft v. Iqbal and the Supreme Court granted certiorari, meaning that we could soon have a firmer understanding of the impact of Bell Atlantic on the notice pleading system. Stay tuned…

So now we’ve got one year down, two more to go. Here’s to hoping the next two are as fun as the first.

In the criminal justice system, the attorney/client privilege looks a little different, at least in the public eye. One of the ethical requirements that obligates a lawyer is to never incriminate his client. The reasons for this are much the same as in the civil context. Even though we don’t like “bad guys,” they are nonetheless entitled to an adequate defense. If the system allowed lawyers to “rat out” their clients, the system would effectively deprive the accused of an adequate defense. Defendants would always be on guard, unable to trust their own attorney. They would resist divulging any information they wouldn’t tell the police and they would simply be unable to have an adequate defense.

With this in mind, consider the case of Alton Logan. Logan has been in prison for 26 years for a crime he didn’t commit. The true perpetrator, Andrew Wilson, had in fact committed the murder for which Logan is serving time. At the time, Wilson had told his lawyers that he, and not Logan, had committed that murder, but Wilson’s attorneys were bound by the attorney/client privilege and could not come forward with the information.  Logan was wrongfully convicted and only now that Wilson has died in prison has the privilege been released and the truth been able to come out.

It is very difficult to be in the position of defending a system which allowed an innocent man to spend 26 years in prison for a crime he didn’t commit. On the other hand, I’m not really defending it. The burden for falsely convicting Logan rests on the prosecution and Logan’s own lawyers. Since Logan did not actually commit the crime, we should blame the system that falsely convicted him.

The attorney/client privilege is good for the system, even though it occasionally seems to produce unjust results. It also highlights the reasons I have no desire to go into criminal law. The stakes are very high and the toll it takes on the conscience is not one I’m willing to pay.

So it was somewhat of a shock when, not even a year ago, the Supreme Court dismissed a RICO claim under a Fed. R. Civ. P. 12(b)(6) motion for failure to state a claim, based on the fact that the plaintiff’s pleadings failed to allege facts that crossed the line from “possible” to “plausible.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (U.S. 2007). The effect of such a ruling is still unknown, and some have gone as far as to suggest that Bell Atlantic may have ushered in a “post-notice pleading” era in federal civil practice.

Seventh Circuit Judge Richard Posner (the famed law and economics proponent and one of the most oft-quoted judges in casebooks of all colors) recently weighed in on the effect of Bell Atlantic. Judge Posner suggested that the holding of Bell Atlantic ought to be considered peculiar to complicated RICO cases and others like them, and suggested that the requirement for additional facts in the complaint which show a “plausible” claim is appropriate where discovery would be more costly than usual. Limestone Dev. Corp. v. Village of Lemont, Ill., No. 07-1438, 2008 WL 852586, at *5 (7th Cir. Apr. 1, 2008).

Judge Posner echoed the Supreme Court, stating that Bell Atlantic does not impose a heightened pleading standard. Nonetheless, it is hard to read it any other way. At the very least, Judge Posner’s explanation seems to indicate that those who will be most aversely affected by this line of cases will be those who are the most interested in obtaining relief, and it seems to protect those who are in the best position to handle the costs of the potential lawsuit. Large corporations typically have all the evidence, especially in RICO cases. The purpose of discovery is to unearth that evidence. By effectively holding that plaintiffs must have enough evidence to even get to the procedural phase in which they are empowered to obtain it places an additional hedge of protection around large corporations who now merely have to claim that the plaintiff’s complaint (while “possible”) is not “plausible,” and contend that discovery would be more costly than usual.

HT: Fight the Hypo

The other approach is the property theory, which would view the same deed not as a legal contract, but as a promise enforced in equity. Under this view, the deed does not create a contractual relationship between two parties but rather, it places a figurative asterisk on the land itself. Instead of A contracting to build nothing but a residential, single-family dwelling on the parcel, the parcel has instead been more or less permanently earmarked for that purpose, regardless of who may subsequently posses it.

The vast majority of legal scholars and law courts have adopted the property theory. The harshness of this approach can be seen in cases such as Western Land Co. v. Truskolaski, in which the defendant land company in 1941 subdivided a 40-acre lot, placing a restrictive covenant on each subdivided lot stating that they were to be used to residential purposes only, and forbidding their use for mercantile businesses. 495 P.2d 624 (Nev. 1972). Almost thirty years later, the very company which had originally owned, subdivided, and restricted the lots, sought to build a shopping center on several of those adjoining lots, which it still owned. The individual owners of the other lots filed suit seeking to enjoin the company from doing so, citing the restrictive covenants which the defendant had itself created. The court held that the covenant still stood and that the land company could not build a shopping center there.

Against this backdrop we see the Restatement (Third) of Property, Servitudes § 3.2 (2000) which appears to be swinging the balance the other direction. It rejects out of hand the common law analyses of “touch” and “concern” which are crucial questions in determining the validity of real covenants, opting instead for a default rule holding all covenants to be valid and giving preference to the intent of the parties. Furthermore, the Restatement declares invalid any servitude or covenant which “is illegal or unconstitutional or violates public policy.” Do these criteria sound familiar? They should; they’re foundational in contract law.

Abdala:

Dear Attorney Korman,

At this time, I am writing to inform you that I will not be accepting your offer.

After careful consideration, I have come to the conclusion that the pay you are offering would neither fulfill me nor support the lifestyle I am living in light of the work I would be doing for you. I have decided instead to work for myself, and reap 100% of the benefits that I sow.

Thank you for the interviews.

Korman:

Dianna –

Given that you had two interviews, were offered and accepted the job (indeed, you had a definite start date), I am surprised that you chose an e-mail and a 9:30 PM voicemail message to convey this information to me. It smacks of immaturity and is quite unprofessional. Indeed, I did rely upon your acceptance by ordering stationary [sic] and business cards with your name, reformatting a computer and setting up both internal and external e-mails for you here at the office. While I do not quarrel with your reasoning, I am extremely disappointed in the way this played out. I sincerely wish you the best of luck in your future endeavors.

Abdala:

A real lawyer would have put the contract into writing and not exercised any such reliance until he did so.

Again, thank you.

Korman:

Thank you for the refresher course on contracts. This is not a bar exam question. You need to realize that this is a very small legal community, especially the criminal defense bar. Do you really want to start pissing off more experienced lawyers at this early stage of your career?

Abdala:

bla bla bla

So the moral of the story is to think twice before you press the “send” button. A little humility could save you a lot of humiliation.

That being said, in some cases flying off the handle may not be so bad after all. In the infamous “monkey scribe” voicemail, then-associate Ankur Gupta left an expletive-laced message for opposing counsel, a voicemail which quickly circulated and can be heard here (WARNING: Contains offensive matieral!). Mr. Gupta has since made partner at the firm, suggesting that there may in fact be a place in the legal community for certain contributors to this blog.

Do NOT, and I repeat, do NOT do anything stupid that you will have to report to the Board of Bar Admissions. Need I remind you that you a spending a great deal of money for your education…..don’t blow it all by doing something that will make all your hard work be for naught!