CASE, RAJNOHA & BOUDREAU, LLP

Missouri Attorneys: Protect Your Privacy

2012-01-11T13:38:00.000-06:00

The Missouri Bar has released information on licensed attorneys in this state to legaldirectories.com. It is a good thing to be listed - one more way for people to find you! However, I recommend checking to ensure that your office address (rather than home) is listed.

Opposing Counsel

2011-12-20T11:52:00.001-06:00

If there's one thing I've learned so far practicing law, it's this: the attorney on the other side of a case has everything to do with what you can get done.

Really, it makes all the difference. The interactions between opposing counselors sets the tone for the case, affects the attitudes that the clients have, and has a huge bearing on one's ability to get things done. I can't tell you how many clients I have right now who just keep checking in with me to see if anything is going on. "No," I tell them, "I'm still waiting to hear back from opposing counsel."

And that's frustrating for me and for my clients. We make it a hallmark of our work to be responsive and act quickly. It would be nice to get the same in return. And sometimes we do! But all too often, it's more of the same: "I'll let you know when I hear something."

More on GPS

2011-11-28T17:00:00.002-06:00

Some time ago, I wrote about cases involving warrantless GPS tracking of automobiles; those cases were bound to be appealed. Now one of them has been. (You can read the original posts here, here, and here.) NPR recaps the situation nicely:

In the case against Antoine Jones (discussed in the second link, above), a conviction relying heavily on the use of a warrantless GPS tracking device was thrown out by the Court of Appeals in the District of Columbia. The question for the Supreme Court is this: do police need to get a warrant from a judge before attaching GPS device?

The government argues that there is no expectation of privacy regarding the location of one's vehicle on public roads; the Fourth Amendment only applies to the interior spaces, such as a glove box, locked drawer, etc. The defense points out that GPS tracking might be okay . . . if it's supported by a warrant, which in this case, it wasn't.

Stay tuned for the final ruling!

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Making It On Your Own

2011-09-16T15:14:00.001-05:00

On her My Shingle blog, Carolyn Elefant recently posted a question she got from a reader about how to grow a practice and succeed as a solo. One commenter specifically asked for suggestions from solos making at least six figures on a consistent basis.

I'm not going to lie to you: that's not me. I'm a new lawyer still finding my way. Further, I'm not a solo, but I do work at a small place - three attorneys, one assistant.

Given those disclaimers, I'll start out by responding to the comment posted by Leanna, all of which are things I've done, am doing, or have considered. Leanna suggests the following steps (my comments in white):

1. Getting really good and comfortable talking about money, asking for money, not giving free consults, and not negotiating on price. This is key.... This is a skill I'm still learning, but already I can see the importance of it. For me, it's all about expectation management. I try to give potential clients a realistic estimate of what their case will cost if we're billing hourly, or tell them up front what a flat fee of x-dollars will cover. We also handle our "retainers" (though we don't call them that) a bit differently than most firms. Look for an article about our process in the future!

2. Sending out a paper newsletter to all past clients and contacts.... We've done one postcard mailing (although it was before I started here), and it was hugely unsuccessful. All the calls we got were from people with imaginary issues or people with real issues who wanted a free lawyer. A newsletter is actually something I'd like to do, but I'm not sure of the best way to go about it and don't want it to be a huge time- and money-drain. Suggestions?

3. Networking in person. Not desperately, but to fill up to the hours when you'd just be sitting in your office reading [S]olo[S]ez or tweeting.... I'm sure Leanna is right that when she says that meeting people is better than sitting on your own. But where I run into trouble is in converting those meetings to actual useful contacts of some kind.

4. Cultivate your existing referral sources. These are the people who already know, like and trust you. Send them a thank you card for their past support of your business, remind them you are taking new clients in particular areas and think about what you might be able to refer to them. We don't really do the professional networking thing. We go to events, meet people, etc., but don't set up referral chains. Most of our referrals come from former clients, which is something we're proud of. Our clients are satisfied with the work we did, and feel that we gave them value for their money. What more can you ask for, besides more clients?

5. Clean your office and shine your shoes.... Funny you should mention that! I'm getting some bids right now on redecorating my office!

6. Screen your potential clients better[].... I think we do a pretty good job of screening clients. We ask them some questions when they call for an appointment so we can give them a good idea of what to expect. Some people will hear and estimated fee and decide they need to "think about it," and others will decide to come in for an initial consultation. And at least when they do, they know what to expect.

LegalTypist's comment that you just need to get involved in your community is probably the next suggestion I'd like to reiterate, and I'd like to stress the community aspect of it rather than the networking aspect of it. See, at most networking events, I tend to meet people who do something similar to what I do. Referrals from those folks will be few and far between. But when people at my local bookstore or teammates on a rec sports team hear that I'm a lawyer...well, there might actually be some business there!

And I'll follow that up by saying that you want to get involved in the type of community activities that will include people you'd like to have as clients. If you do IP work, get involved in some cultural activities - arts, music, and the like. If you do a lot of business law, maybe get involved with your local chamber of commerce. Seek out the people you want!

The Benefits of a Simple Car Loan

2011-08-22T10:03:00.002-05:00

The loan may be simple; the process is not. But read on to find out how one dedicated team of people turned life around with a new car for this divorced mom.

Patent Wars

2011-08-05T10:38:00.000-05:00

We don't do patent work, but there was a fascinating episode of This American Life a couple of weeks ago called "When Patents Attack." It's all about how the patent program, which was designed to spur innovation, has been subverted since its inception, and now hinders it. Patents are being used as both offensive and defensive weapons in a litigation war of mutually assured destruction.

Our Youngest Client!

2011-07-25T11:37:00.000-05:00

Universitas

2011-07-21T11:28:00.001-05:00

Check out the Summer 2011 issue of Universitas -- page 14 of the .pdf, on the right-hand side (which is page 25 of the magazine)! There we are!

LawyerUp

2011-07-19T14:43:00.001-05:00

The New York Times published an article last month about a company called LawyerUp. The company promises an attorney will begin work within 15 minutes of your emergency call to the company's operator.

I have to say, I'm a little surprised that someone didn't think of this sooner. Whether it's a good idea or not, I'm not sure, but it appears to be a money-maker, and that seems to trump quality of the idea in all cases.

Having said that, this seems rife with ethical problems. As one example, the system works like this: you can either pay a monthly rate to have the one hour of service available as soon as you call, or you can "pay in a pinch," which is $100 for the dispatcher and the full $250 for one hour of legal services. But that's all you get: one hour.

I admit, I'm not sure what the rules are in New York, but I'd be hesitant to take on a client, especially one who had just been arrested or needed assistance immediately, if I knew I was going to cut them off at 60 minutes. Once you take someone on as a client, you owe them certain obligations, and sometimes those exist whether or not you're being paid; sometimes you can't just stop working, and it seems like that's what the business model is at LawyerUp.

And that's just the first one that comes to mind. What about pesky little things like conflicts? Do you have time to think about that if you're only doing an hour of work?

I'll be interested to hear how this turns out.

The Collision Over Traffic Cameras

2011-07-11T15:47:00.000-05:00

As the City of St. Louis and surrounding municipalities are installing red light cameras, debate on whether they should be used continues to intensify locally. Check out one example of the opposition.

But apparently it's not just us. An article in last week's New York Times by the same name as this post looks - briefly - with a wider lens at the different opinions. Bottom line: they can be good and work well, but that happens all too rarely.

What do you think?

A Glut of Attorneys

2011-07-05T12:30:00.002-05:00

EMSI, a company that does employment and economic data analysis, recently crunched the numbers on demand for (and wages of) attorneys in the 50 states and District of Columbia. The story was reported by the New York Times, and is available here. Turns out that only two states (Nebraska and Wisconsin) as well as D.C. are experiencing a shortage of attorneys.

Too bad for the rest of us. New York tops the list, but Missouri comes in at a not-too-shabby (or perhaps all-too-shabby) 10th place.

Crying Foul

2011-07-01T11:22:00.000-05:00

The LA Times just published a pair of articles (first, second) which illustrate with painful clarity how wrong things can go in a custody case.

The articles are long, but worth the read. Just in case you don't have time, I'll do my best to summarize, and add some commentary at the end:

The story is about Louis Gonzalez III, who three years on, has established that he was trying to do nothing but be a good father whenever the court would let him. His ex-girlfriend Tracy West had taken their son from Nevada, where Louis lived, and moved to California. One weekend, when he was in California to see his son's new school and spend the weekend with him, Tracy accused him of a brutal kidnapping, assault, and rape. She had clearly been the victim. Louis was arrested.

He was held for over a month in the Ventura County jail before his alibi could be fully corroborated. Police officers concluded he did not have the time or equipment to commit the crimes she accused him of. His only snippets of unaccounted-for time were small - six minutes here, five minutes there. He could not have done it. He was released. His record was expunged. He eventually received a declaration of factual innocence from the court, which is a very rare thing; it doesn't say "we didn't have enough evidence to convict you," it says "you didn't do it."

That wasn't the end of it though. Louis was still fighting for custody, which had been severely limited or cut off completely due to the criminal charges. Eventually, after further investigation into Tracy's psychiatric condition, Louis was granted custody, but Tracy retains visitation rights. She moved back to Nevada to be closer to her son.

So far, Tracy's only punishment for fabricating the accusations against Louis was a court order to reimburse Louis for $55,000 worth of attorneys fees spent in the custody battle. No telling how much more than that he actually paid during the criminal trial and ongoing custody hearings. Shortly after the order, she filed for bankruptcy; it's unlikely he'll ever see a penny.

My thoughts:

Something has gone horribly wrong here. Actually, many things have gone horribly wrong.

First, there is nothing that can be done to compensate Louis Gonzalez for his time in jail, the time he lost with his son, and the lingering damage to his reputation. He can be compensated monetarily, but Tracy West probably will not be the source of much recovery.

Second, what has this world come to, that we resort to accusations of serious criminal behavior - crimes potentially carrying five (five!) back-to-back life sentences - before we can work out a reasonable agreement with someone?

Third, obviously we have to be careful where sexual violence is concerned. The police were right to get Louis off the street right away. If he really had done such a horrible thing, jail was where he needed to be. And to his credit, Louis does not fault the police department for his detainment. They were just doing their job, and eventually the lead detective concluded that Louis did not do what Tracy accused him of. He refused to testify against Louis in court.

However, when it is as clear as it is in this case that the complaining victim not only lied, but either brutalized herself or had someone else participate, filed a false police report, cost the county and the court system untold numbers of dollars, withheld visitation time with a child, and nearly destroyed someone's life, she deserves to be punished.

Exactly how or what the proper punishment is? I have no idea. But the idea that someone can game the system like this merely for personal gain and suffer nothing but self-inflicted wounds is revolting.

Louis filed a civil suit against Tracy and her then- (still-?) husband Timothy Geiges for malicious prosecution, although it appears from the very limited docket notes on the Ventura County Superior Court website that nothing came of it. Perhaps they reached a confidential settlement.

Even Tracy's lawyers don't like her. An article in the Ventura County Star cites a motion filed by one of her attorneys who withdrew from representation, stating that "Ms. West insists upon taking actions that [her attorney] considers repugnant and with which there exists a fundamental disagreement between Ms. West and [her attorney]."

Marketing Update

2011-06-27T14:16:00.000-05:00

A few months back, I wrote about a marketing contest for small law firms sponsored by LexisNexis. Recently, the marketing experts - they make the magic happen - hosted a follow-up webinar last week. Larry Bodine, who was also a webinar participant, posted a great summary on his blog, which you can find here.

Again, huge thank-yous to everyone involved! This has been an amazing experience!

Getting Divorced or Separated? 7 Financial Mistakes Not to Make

2011-06-21T15:27:00.042-05:00

AOL News recently published a list of "7 Financial Mistakes Not to Make." Most of the advice is good, but I do have a few comments to add, both in general and about our firm in particular (in gray; quotations from the article are in black):

1. Thinking that a mediator will protect your financial interests.
. . . [A]lthough lots of couples do experience very bitter divorces, it's also true that when many people break up, one party in the relationship will try everything possible to avoid unnecessary drama . . . For these people, retaining a divorce mediator or arbitrator is one way to accomplish a less combative divorce . . . But be warned: Hiring a mediator just for the sake of "impartiality" or in an attempt to "keep the peace" is usually a bad financial move – a really bad one – particularly if you assume that a mediator will look out for your best interests. "The primary goal of the mediator is to get a settlement. And any settlement means the mediator has done his or her job," says Susan Carlisle, a Los Angeles area CPA who specializes in family law. "Although the best mediators do their [best] to get the settlement as equitable as possible, it's your job to negotiate well for what you need and want. The mediator can't do that for you." That's why the best mediators always recommend that each party in a divorce also have their own consulting attorney.

It's true that hiring a mediator may reduce costs, but that is not necessarily so. Often, hiring a mediator is actually more cost effective if the divorce has already become contentious - although you also have to be particularly careful at this stage to look out for your own interests - because you may be able to work through some of your differences prior to getting an attorney involved. This can seem paradoxical, but here's the reasoning:

In Missouri (even if you work out a settlement with a mediator), one or both of you will typically hire an attorney to actually move the paperwork through the court system. It is unethical in most circumstances for a mediator, even if he or she is an attorney, to represent either or both of you in this proceeding after he or she helped you work out the settlement agreement. Therefore, an outside attorney will be required, and some of the discussions with your attorney may be duplicative of those you had with the mediator. If you've used the mediator to work through most of the contentious issues by this point and the mediator has prepared accurate documentation of your settlement agreement, costs can be kept to a minimum. However, if there were no (or few) contentious issues to begin with, it is likely that you will have paid as much for the mediator as you would have paid for an attorney, and then you'll just have to do much of the same work over again once you secure representation.

2. Hiring the "best" lawyer that money can buy
Just because you should hire an attorney to handle your divorce doesn't mean it should cost you and arm and a leg. "People generally think that the more expensive a lawyer is, the better they must be. This is not always the case," says Jonathan Blumenthal, a certified financial planner . . . Others want to bring out the all-star legal power in order to get back at a spouse, prolong the process or simply "win" at all costs. "That strategy works really well for the big gun [attorney] but not well for the person getting divorced," says Carlisle. "Unfortunately, lawyers make a living off people's insecurity, pain and desire for revenge. But it almost never works." . . . So what's the best alternative to getting a mediator or hiring a high-priced attorney? The solution may lie in "collaborative law," a process that lies somewhere between mediation and litigation. It's where two attorneys and the couple are committed to not going to court, but you each have a lawyer that looks out for your best interests.

People have asked us whether we practice "collaborative law." It took us a while to even figure out what they were talking about, but it turns out that we have been practicing a type of collaborative law for years.

Contrary to the author's statement, not all attorneys are out to "make a living off people's insecurity, pain and desire for revenge." Ouch. Are there a few of those? Sure, there are bad apples in every bunch. But most of the lawyers we have worked with are friendly, hardworking, and trying to do the best for their client (which includes not running up exorbitant and unnecessary costs).

Unlike collaborative law, I can't say we are "committed to not going to court" - we won't hesitate to do so if the case requires it, and I think the same is true of most attorneys in the area. It's just that most cases don't require it; typically, a lot of money can be saved by settling a case. Clients often don't realize how expensive it is to go to trial, and - quite the opposite of what the author implies - we find ourselves talking the client out of trial rather than pushing them into a long, drawn-out battle.

3. Keeping joint credit cards and loans
Once you call it quits in a relationship, you need to separate your finances ASAP . . . One reason to close joint credit cards and loans is that each of you will be 100% financially liable for debts incurred – even if the other person racked up the bills . . . Additionally, says Blumenthal, "even if your divorce starts out cordial, things can change quickly when people go into survival mode." You don't want a cash-strapped or bitter ex-spouse to start running up credit card debt, suddenly stop paying bills, or begin incurring financial obligations for which you could be held responsible.

This is generally good advice, although you have to be careful not to run afoul of court rules when what you do will affect the finances of the other party to a dissolution case. In St. Louis County, Local Court Rule 68.3; specifically see section (2), subsections (E) through (G) regarding what the author mentions here.

4. Insisting on hanging on to the family home
Hanging on to the family home can be a mistake both financially and mentally, experts say . . . [M]any divorcing people, especially women, are adamant about keeping the family home. It's often a misguided effort to provide stability for the kids. "But kids are flexible," says Carlisle . . . "It's important to try to keep the kids in the neighborhood where their friends are and where their school is," she advises. "But that doesn't mean keeping up an expensive home you can't afford."

Again, generally good advice, but incomplete. If one party does feel strongly about keeping the family home, that person needs to sit down and take a good, hard look at their finances. What will be coming in - income, maintenance, child support? What will be going out - regular expenses, tuition, emergencies? Often these conversations should involve a financial planner. If there is enough money - and often there is - then you can keep your house. The question of whether "mentally" it is healthy is a more difficult one to answer.

5. Trying to maintain the exact same lifestyle
. . . In your post divorce, life, . . . you'd be wise to accept a simple truth and break it gently to your children: You and the kids can't do everything you previously did. "There are now two households to support," Carlisle says, which will greatly impact the family's finances . . .

A great point, and something that often gets lost in translation; it's always going to be more expensive to run two households than to run one. However, statistics show that a significant percentage of custodial mothers experience a decline in their financial status after a divorce, whereas their non-custodial-father counterparts experience an increase in their status. What can be done about this? Really, it has to be handled on a case-by-case basis, and it's the attorney's job to look out for your best interests, which includes financial interests now and in the future.

6. Having a weak property settlement agreement
A divorce agreement . . . is an all-important document that acts as a kind of blueprint to what's going to happen in your post-divorce world financially and otherwise . . . Problems erupt, however, when your agreement fails to account for any host of potential issues that not only may arise but are almost guaranteed to come up. For instance, if there's a "change of circumstances" – say, the kids' needs change dramatically, or one party makes a lot more or a lot less money – in most states, either side can go back into court and ask to either receive more financial support or pay less financial support. If your marital settlement agreement doesn't plan ahead for such contingencies, expect to endure a lot of back-and-forth and potential legal wrangling with your ex down the road. Indeed, the ink is barely dried on many divorce agreements, says Carlisle, "before someone is back in court, demanding a change to the agreement."

Regarding maintenance: It's true that in Missouri, either side can go back to court and ask to change the amount of maintenance paid or received, but they have to have a good reason for doing so in order for a judge to grant a change. And for as long as a judge is on the family court bench, you'll keep going back to that same judge, so it's best not to file frivolous suits.

Regarding future events: there are some events which really should be accounted for: college expenses, provisions for sale of the family home, settlement of joint debts, etc. But there are other things - winning the lottery, losing a job, a debilitating car accident - which either are unlikely enough as to be unimportant or cannot be provided for by court rule. For example, a judge cannot order maintenance payments to terminate at a date certain, because he does not know what the situation will be for the family in the future. If the situation changes and you think that the change warrants termination of the maintenance payments, it is incumbent upon you and the payor (or, less frequently, the payee) to go to court and ask for the judge's blessing.

In the case of extremely unlikely events, you may spend more time and money hashing out a settlement agreement which covers every possible contingency than you would revisiting the issue if and when it ever arises.

7. Failing to change your will and insurance policies
Sometimes, people simply forget to change these documents. Other times, they think "I'll get around to doing it later" or "What could it hurt for now?" Well, it can cause plenty of problems if one spouse remarries – and Carlisle says divorcing men typically remarry within two years – and then that person passes away. The first wife, or previous spouse, gets all the money, and the new spouse might be left in the cold. Not exactly what most people would want to happen after their death. "When you go through a divorce, you need to make sure you go back and change all your beneficiary information on all accounts and policies," advises Blumenthal. "Regardless of what you have in your will, if your ex is still the beneficiary of your IRA, for example, that will supersede your updated will."

This information is not all true for litigants in Missouri. By operation of law, a divorce causes the probate court (which handles the distribution of assets bequeathed in someones will) to treat the divorced spouse as though they had already died. It's easier with names: Bob and Sue get divorced. Sue forgets to change her will, which leaves everything to Bob. Sue then dies. Despite Bob being listed as Sue's beneficiary, the probate court will pretend as though Bob had already died.

Now, this doesn't necessarily mean that the resulting distribution (with Bob out of the picture) is what Sue would have wanted. Therefore, it is certainly a good idea to go back and examine all legal documents and other assets, especially insurance policies and financial accounts of various types, with beneficiary designations.

Going through a divorce can be one of the most traumatic things that you can go through in life. Having a good attorney - someone you trust and who will advocate on your behalf - is probably the easiest and most foolproof decision you can make.

Red Light Cameras

2011-05-25T12:25:00.000-05:00

There has been a lot of debate over the presence of red light cameras in the City of St. Louis, as well as other municipalities. A recent decision by Judge Mark Neill in the 22nd Judicial Circuit Court struck down the ordinance which allowed the cameras to be mounted to monitor traffic in the city.

So will the cameras be removed? It's too soon to tell, but keep your eyes peeled at city intersections!

Facebook Users, Beware!

2011-04-07T16:42:00.001-05:00

I'm not on Facebook (although our firm is). The more I hear about Facebook in the news, the more satisfied I am with my decision to abstain from use of the social networking site. Facebook isn't the only culprit; it's just the most ubiquitous.

The prevalence of social media has many benefits: we can keep in touch with our friends, get updates about sales at our favorite stores, and monitor the real-time progress of our hometown teams. Even start revolutions. But for all the information we take in, we also seem very free to put information about ourselves out there for others.

This "Facebook effect" has been growing as the popularity of social media in general has grown; for example, there was a story published in The Telegraph about Facebook and the divorce rate in the UK almost a year and a half ago to this effect. There was one published in Time magazine nearly two years ago. But those were just the tip of the iceberg.

As social media have proliferated, we're finding a whole new host of ways to get ourselves in trouble. According to an erroneously attributed Loyola University study and press release (cited here), Facebook is now being implicated in 1 in 5 divorces in the US (although the Wall Street Journal's Numbers Guy disputes that number). The situation is similar elsewhere; it's become the "virtual third party" according to a more recent article in Britain's Telegraph. If fact, St. Louis's very own Alisse Camazine was interviewed for a story by KSDK on the rise of social media in divorce cases.

Does Facebook really cause all these divorces? And whether it does or doesn't, what do you do with all this information? Here are my thoughts:

Facebook doesn't cause divorce. It may cause, or maybe enable is a better word, a lack of attention to one's spouse, the rekindling of an old flame, meeting new people (friends of friends), "harmless" flirting, and even affairs. Actually, enable may not be quite right either; all those things have been obstacles in the past. I think it's just that Facebook and other social media make doing them so much easier. Whereas before, people may have resisted because there was just too much inertia, now all it takes is a few clicks of the mouse. Since we're at our computers all day anyway, it doesn't seem like we're really doing anything wrong or scandalous or immoral or even questionable.

That, I think, is the real problem: our standards of behavior have not kept up with the changing technology.

FantasySCOTUS

2011-03-08T14:38:00.003-06:00

Have you ever thought you'd do a great job as a Supreme Court Justice? See how you measure up.

More Legal Humor

2011-03-02T14:23:00.000-06:00

Maybe it's the season: things are warming up a bit, the days are longer, spring is in the air. And I'm in a good mood. And so I (hope to) bring you so more chuckles. This is not remotely the best-designed website I've ever seen, but it sure is funny. Props to these attorneys for not being so darned serious all the time!

Facebook

2011-02-23T09:53:00.001-06:00

Our lovely secretary Amanda set us up with a Facebook page. Check us out!

Humor

2011-02-14T15:24:00.001-06:00

A couple holiday jokes for us lawyers!

Give the Recovery a Chance!

2011-02-11T11:10:00.000-06:00

A story on NPR's Morning Edition yesterday discussed the link between the recovery from recession and a rebound in the divorce rate.

Divorces are expensive, no question about it. Conventional wisdom and CBS News say theorize that when finances are especially tight (for example, during a recession) the divorce rate drops. The corollary to that appears to be this: when finances become more manageable again, all those divorces that had been put off will come pouring through the court system. I hope everyone's ready.

Case, Rajnoha & Boudreau, LLP wins Online Marketing Contest

2011-02-03T21:25:00.001-06:00

Case, Rajnoha & Boudreau, LLP, is thrilled to announce that we have been selected as the winner of LexisNexis's Ultimate Law Firm Marketing Makeover Contest!

CRB was announced as the winner at LexisNexis's Small Law dinner held in New York City on January 30. Photos from the event are available here.

We are excited to begin work with Lexis's marketing makeover team: Len Gilbert, Carlton Dyce, Andrew Unsworth, and Ruth Davis. They will provide services including website design, video design and production, practice management tools, search engine optimization, and online profile management. We were lucky enough to meet all the members of the makeover team in New York, and it's clear that their expertise will mean big changes for us.

The two-part contest application process began in October, and required applicants to submit written answers to two questions focusing on how online marketing could benefit the applicant’s firm. Based on those submissions, received from all over the country, five finalists were selected to participate in a video interview process.

The panel of five judges included David Palmieri and Carol Everson of LexisNexis, David Lat, Larry Bodine, and Carolyn Elefant.

Thank you to all the judges, the makeover team, and everyone at LexisNexis for this opportunity!

The Dangers of Texting While Walking; or Frivolous Lawsuits

2011-02-02T16:34:00.004-06:00

Did you see the news story about the Fountain Lady? If you didn't, watch the video. Then listen to Anderson Cooper, who sums up my feelings about the Fountain Lady's lawsuit perfectly.

The Top of the Market

2011-01-27T11:06:00.001-06:00

Earlier this month I wrote a post about the controversy which has been brewing for some time surrounding the law school numbers game. Are we at the top of the market? The end of the line? The peak of our pride (which, as we all know, goeth before the fall)?

An article posted on the New York Times website two days ago indicates that "America’s love affair with law school finally seems to be waning." Application numbers are down (12.5% from a year ago), the article says, as are LSAT numbers (10 or 16.5%, depending upon your point of comparison).

Could it be true? Are we going to have trouble finding interns in the coming years?

Jury Duty

2011-01-19T13:37:00.000-06:00

News sources including NPR, the Daily Mail, and the New York Daily News have recently reported on Sal Esposito, who was recently summoned to appear for jury duty in Suffolk (Boston) Superior Crown Court. Sal, however, is a cat.

Sal's owners objected to the summons and requested Sal's dismissal on the ground that Sal is "unable to speak and understand English," and also included with their request a letter from their veterinarian stating that Sal is, in fact, a feline.

The Superior Court rejected Sal's request for dismissal and Sal is currently expected to appear in court on March 23.

I wonder what the security guards will think when Sal shows up.

Quote of the Day

2011-01-17T12:43:00.000-06:00

"Instead of getting married again, I'm going to find a woman I don't like and just give her a house."
-- Louis Grizzard

"Law school is a pie-eating contest where the first prize is more pie"

2011-01-13T17:03:00.000-06:00

Consensus seems to be building, and it's not in favor of the law schools. Many reports have been issued lately from a variety of sources, but they all make the same point: law schools sucker kids, charge too much, and don't produce results.

Graduate school appears to be a common solution to a slow economy. Since you can't find a job and make any money, why not borrow money and go into debt? Seems logical. The Law School Admissions Council and the American Bar Association reported recently that the number of hopefuls who took the Law School Admissions Test in October 2010 was the second-highest number of takers ever.

At the same time, law schools are raising enrollment and raking in ever more money in tuition, while finessing employment-after-graduation figures which mislead incoming and potential students, or so says columnist David Segal, who published a long and scathing critique of the whole system in the New York Times last week. It includes interviews with former students, professors, deans and other administrators, and representatives from the ABA and US News & World Report (famous for its controversial rankings). He accuses law schools and administrators of (among other things) being completely incapable of policing themselves, which is not a good sign in a profession that - ironically - relies primarily on self-policing for regulation and detection of ethics violations.

In a lot of ways, I think he's right. The rankings are a game, and administrators fudge the numbers so they can up their stats. But at the same time, anyone who enters a three-year graduate program knowing tuition is $40,000 per year has to know that they're going to graduate with at least - at least - $120,000 in debt. It's not rocket science. And that $120,000 figure is assuming the students' other costs (shelter, food, books, car payments, health insurance, etc.) are covered by someone else. If that's not the case, you can probably tack another $100,000 or so onto the total amount due, assuming they are wise enough to live like a frugal student for the duration.

Where I think Segal's argument falls a little short is in discussing the financial responsibility of the students. Most student loans are 10-year loans. If you take out $120,000 in loans with a 10-year repayment plan and 6.8% interest, any online loan calculator (they are available here, here, here, here, here, and here, among other sites) can tell you that your monthly payment will be $1,380.96. No kidding here, folks; that is a substantial payment. But I figured out that number in about 30 seconds. Now, it's true that if you're taking out multiple federal and private loans, the total monthly payment for all of them is harder to calculate. One might need a pencil and paper to record some of the numbers, so that you can add up the totals at the end. But really, this isn't that complicated. If I can do the math, anyone can.

I think the point Segal makes well, though, is that the schools allegedly led all the students think they'd all be making $200,000 per year. If that were true, $17,000 going to pay down loans every year wouldn't seem so bad. But when you're making $30,000 per year - or worse, when you're unemployed - $17,000 per year is a whole lot of cash. Maybe financial advisors should be required sit down with each and every incoming student and say "the lower end salary for someone graduating is $30,000 per year. Do you have sufficient other resources that you can afford to pay about half of that salary towards your loans?" If they answer is no, ask them to come back in a year when they've successfully passed the intervening time having spent not a penny over $13,000. If they've proven their mettle by succeeding at that challenge, welcome them to law school with open arms. If not, show them the door. But that's just my recommendation.

Perhaps what all newly-minted lawyers struggling to make loan payments will get out of this fiasco is a healthy dose of cynicism. Here's hoping they can impart their hard-learned lessons on the next generation.

[A blog post summarizing other responses to Segal's Times column is here.]

Press Release

2011-01-07T14:41:00.000-06:00

LexisNexis started a small firm marketing contest, the Ultimate Law Firm Marketing Makeover. The first round of submissions was due in December, and I decided to enter our firm. We made it to the group of five finalists, and are anxiously awaiting the results!

Happy Emancipation Day

2011-01-05T14:48:00.000-06:00

Taxpayers, it's your lucky day! Due to the April 15th celebration of Emancipation Day, you get three extra days to file your 2010 tax returns!

Pink - Family Portrait

2010-12-31T15:37:00.002-06:00

This song is an reminder about the kids who often get stuck in the middle in domestic cases. It's an interesting point of view from an unexpected source.

Alzheimer's on the CBS Evening News

2010-12-27T15:54:00.002-06:00

There was recently a story on the CBS Evening News discussing the detection, presentation, and delayed onset of Alzheimer's Disease. There is text as well as a link to the news program.

As the baby boomers inch towards old age, the prevalence of Alzheimer's - and the care of patients who have it - becomes an ever-more-important issue in our society.

From Divorce Insurance to Divorce Funding

2010-12-16T13:26:00.003-06:00

An article published earlier this month identifies a new trend in lawsuit finance: divorce funding. Companies have been around for years which offer to front the costs of a personal injury lawsuit in return for a portion of the recovery, but the foray into the domestic realm is fairly new. The article focuses on a company called Balance Point, which was founded by a woman who initially received an inequitable settlement in her divorce because she had exhausted all her resources and could not keep fighting for a better arrangement.

The article is available on the New York Times website, although only page 1 of the story is viewable without a NYT account.

Risks (and benefits?) of being pro se

2010-12-08T14:48:00.000-06:00

About a year and a half ago, there was an episode of the public radio show This American Life entitled "Pro Se." If you've never listened to the show, the typical format is something like this: each week, the editors pick a theme, and provide listeners with a variety of stories - as few as one, as many as five or six - on that theme.

The discussions in "Pro Se" were understandably mostly related to litigants who choose to represent themselves in court. Very interesting stories; definitely worth a listen.

GPS Surveillance, Part III - Meaning and Other Rulings

2010-11-28T08:24:00.044-06:00

I went on ad nauseum two posts (and many weeks) ago about the Ninth Circuit case of United States v. Pineda-Moreno. I stopped short (I think) of offering any of my own interpretations. No longer:

If you live in the Ninth Circuit (which is huge; it includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands), post "No Trespassing" signs at the end of your driveway - or all around your property - if you want to prevent entry. Those signs will give you a much stronger argument that agents who entered onto your property under cover of night to place a tracking device on your vehicle were operating unlawfully.

However, if your car is ever found in a public place (at a parking meter, for example), law enforcement officials can place a tracking device on your car to trace its location, and such action is not unlawful.

There is an argument (springing from Judge Kozinski's dissent) that GPS trackers are an unlawful extension of the law enforcement's use of technology, but so far the rest of the Ninth Circuit doesn't agree with him. (Other courts do, though; see below.)

Of course, if you are not suspected of any criminal activity, this should not concern you, except on ideological grounds (where you should be very concerned, no matter your criminal or law-abiding tendencies).

Similar rules apply if you live in the Seventh (Illinois, Indiana, and Wisconsin) or Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North Dakota) Circuits. See United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); Unites States v. Marquez, 605 F.3d 604 (8th Cir. 2010). Both cases are discussed briefly below.

The Ninth Circuit, though, is not the only court with an opinion on this issue. The United States Court of Appeals for the District of Columbia Circuit has also weighed in, and the judges on the east coast (not surprisingly) feel differently. If you live on that side of the country, you may have slightly more protection from government investigation as to your whereabouts. What happens when one Court of Appeals says one thing and a different Court of Appeals says something else? Usually one or more cases with similar facts will find their way to the Supreme Court of the United States. If SCOTUS hears such a case, their ruling will become binding on all circuit courts. If they decline to hear it, the difference of opinion, known as a split in the circuits, will continue.

United States v. Maynard
In United States v. Maynard (the full opinion is available here), the DC Circuit Court of Appeals heard the arguments made on behalf of Lawrence Maynard and Antoine Jones.

Mr. Jones and Mr. Maynard were both under investigation for narcotics violations by the joint FBI-Metropolitan Police Department Safe Streets Task Force. They were arrested and both defendants, along with a number of their acquaintances, were charged at the trial level with conspiracy to distribute and conspiracy to possess with intent to distribute a large amount of cocaine or cocaine base. Both were convicted in a joint trial. Mr. Maynard's appeal does not address the GPS argument, so is not significant for these purposes. (Mr. Jones also made a number of points on appeal which are not significant here, but include alleged error in the admission of evidence secured by wiretap and and by a search incident to a traffic stop, as well as a number of alleged errors at trial.)

Mr. Jones's conviction was secured with heavy reliance by the government at trial on a GPS tracking device which had been placed on his vehicle. On appeal, Jones argues that this tracking - which went on 24 hours a day for 28 days, with the device automatically transmitting and recording his position at regular intervals - constituted a search which violated his reasonable expectation of privacy under the Fourth Amendment, and was therefore illegal since the agents lacked a search warrant at the time the device was activated.

(1) Did the use of the GPS device constitute a search?

(a) Knotts is not controlling precedent
The government's argument relied on United States v. Knotts, in which the United States Supreme Court found that using a beeper device to aid in the physical tracking of a vehicle did not constitute a cognizable "search" because a person traveling on public roads has no reasonable expectation of privacy in his journey from one point to another. The government's argument was that the GPS device was essentially the same as the beeper in Knotts in that it aided the law enforcement agents in their attempts to track the whereabouts of their suspects, and that the GPS was not the type of mass surveillance that the Supreme Court was concerned about in Knotts.

The court here disagreed. The beeper, they said, was for use only during a "discrete journey." The Supreme Court had specifically reserved the question of "whether a warrant would be required in a case involving 'twenty-four hour surveillance,'" and not just the type of "mass surveillance" that the government was advocating for (such as blanket wiretaps), but even for twenty-four hour surveillance of an individual. The court cautioned that "if a warrant is not required, then prolonged 'twenty-four hour surveillance of any citizen of this country will be possible, with judicial knowledge or supervision.'"

The court pays homage to United States v. Pineda-Moreno (previously discussed at some length), United States v. Garcia, and United States v. Marquez. The Seventh Circuit Court of Appeals in Garcia upheld the use of the GPS device, but Mr. Garcia had failed to argue in that case that he had a reasonable expectation of privacy over the totality of his movements for the duration of the surveillance; his only argument was that the placement of the device which led to the tracking was a violation of the search requirements of the Fourth Amendment. The court in Garcia found the use of the GPS device to be more similar to tracking via stationary mounted cameras or satellite (not a search) than to a listening device on a phone (a search), and hence found no Fourth Amendment violation.

In Marquez, the Eighth Circuit Court of Appeals agreed with the Seventh and Ninth Circuits when faced with an argument similar to the one made in Garcia. The court, despite finding that the defendant lacked standing to challenge the use of the GPS device, stated that installation of a non-invasive GPS tracking device for a reasonable period of time to a car parked in a public space did not require a warrant.

(b) Were Jones's whereabouts exposed to the public?
Since Knotts doesn't control the outcome in this case, the court must analyze Mr. Jones's expectation of privacy. The requirement imposed by the case law stemming from the Fourth Amendment that law enforcement officials be armed with a warrant generally does not apply where a person has no reasonable expectation of privacy. The question of whether one's actions are "exposed" can be considered in light of either actual exposure or constructive exposure.

(i) Actual Exposure
When examining actual exposure, the court asks "not what another person can physically and may lawfully do, but rather what a reasonable person expects another might actually do." The court illustrates the application of this question by looking at a number of different cases, including United States v. Kyllo and United States v. Gbemisola.

In Kyllo, "the Court held use of a thermal imaging device defeats the subject's reasonable expectation of privacy, 'at least where...the technology in question is not in general public use.'" Thermal imaging was not in public use - it was not something "a reasonable person expects another might actually do" - therefore it violated the subject's reasonable expectation of privacy.

In Gbemisola, in which the subject and contraband were located in the rear seat of a taxi, the court declared that "'one cannot have a reasonable expectation of privacy concerning an act performed within the visual range of a complete stranger, [so] the Fourth Amendment's warrant requirement was not implicated." The implied corollary in Gbemisola is that, had the act taken place out of view of the public, there would have been an expectation of privacy.

The government's argument in Maynard is simple: knowing exposure of one's movements, movements on public roads visible to anyone who wanted to look, is not subject to Fourth Amendment protection. Applying the principles from Kyllo and Gbemisola to Mr. Jones's case, the court finds differently: "the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil." Jones's movements were not actually exposed.

(ii) Constructive Exposure
The government makes no argument for constructive exposure, but the court acts on its own initiative to explore the issue. It relies on United States Department of Justice v. Nation Reporters Committee, in which a Freedom of Information Act request for documents was denied: "Although the 'individual events in those summaries [were] matters of public record,' ...the subjects had a privacy interest in the aggregated 'whole' distinct from their interest in the 'bits of information' of which it was composed."

The court's decision here, while wise, is not particularly well-stated. "The whole of one's movements over the course of a month is not constructively exposed to the public because, like a rap sheet, that whole reveals far more than the individual movements it comprises." Prolonged surveillance, which allows the viewer to see patterns of behavior, is vastly more revealing about a person that one-time observation. "A reasonable person," they said, "does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain 'disconnected and anonymous.'" Therefore, neither were Jones's movements constructively exposed to the public.

(c) Was the expectation of privacy reasonable?
The court frames this question within the bounds of a case it previously decided, Reporters Comm. for Freedom of Press v. AT&T: "the Fourth Amendment ... secur[es] for each individual a private enclave, a 'zone' bounded by the individual's own reasonable expectations of privacy."

The government, as was its habit in Maynard, argued that Jones's movements took place on public roadways, and therefore Jones had no reasonable expectation of privacy. The court fell back on its analysis of actual and constructive exposure, reasoning that no one would expect every movement they made over the course of a month to be aggregated; even if someone observed a single movement, the subject of the observation would expect the others to remain disconnected from that one.

The facts of the case and its own previous analysis lead the court to the conclusion that "[s]ociety recognizes Jones's expectation of privacy in his movements over the course of a month as reasonable...."

(d) Visual Surveillance
The court takes a bit of time to distinguish between visual surveillance and the use of a GPS tracking device. It acknowledges the efficiency of GPS tracking, but also notes that the low cost and manpower requirements attendant thereto render it a new type of intrusion into the lives of citizens, not the type of intrusion which had been previously contemplated. The government, for its part, failed to point out a single instance of prolonged visual surveillance that would be upset by the court's ruling in Jones's favor here, and the court reserves that question for a later time.

(2) So there was a search which was otherwise unreasonable. Was it rendered reasonable by an exception to the Fourth Amendment rule?
The "automobile exception" to the Fourth Amendment warrant requirement allows the search, without a warrant, of an automobile if the "car is readily mobile and probable cause exists to believe it contains contraband." The government argued that this exception applies because the device was attached to a vehicle.

Mr. Jones argued, and the court agreed, that the exception does not allow installation of a tracking device. The exception's allowance of search upon the existence of probable cause is much too narrow to support the government's position.

(3) The evidence was admitted in error. But was the error harmless?
Evidence obtained from the GPS tracking device was used in Mr. Jones's conviction at the trial level. If the government could show that the district court's error in admitting the evidence despite its unconstitutionality was harmless, the decision would not be overturned. The government failed to meet that burden, and the Court of Appeals found that it is unlikely Mr. Jones would have been convicted without the GPS evidence.

The court reversed Mr. Jones's conviction.

Application for Rehearing En Banc
Since the reversal of Mr. Jones's conviction, the government applied to the DC Circuit Court for a rehearing en banc. The petition was denied.

In support of the denial, Judges Ginsburg, Tatel, and Griffith stated that the government failed to meet either of the requirements for the automobile exception to the Fourth Amendment's warrant requirement, so they needn't reconsider the issue. Additionally, the government's argument that the case calls the admissibility of evidence obtained from prolonged visual surveillance is faulty because the court specifically reserves that question.

In a dissent written by Chief Judge Sentelle and joined by Judges Henderson, Brown, and Kavanaugh, those judges express their concern that the DC Circuit now stands in opposition to the other circuit courts which have ruled on the issue of GPS surveillance. Further, they feel that the panel's decision stands in opposition to the Supreme Court's opinion in Knotts, which is binding precedent and must be followed. They are unconvinced by the panel's distinction between Knotts and Maynard, saying that the only difference between the two types of monitoring is the volume of information obtained. Such a minute difference, they argue, is not sufficient to render a new line of jurisprudence.

GPS Surveillance, Part II - The Dissent

2010-10-08T16:05:00.001-05:00

In my last post, I summarized the opinion of United States Court of Appeals for the Ninth Circuit in the case of United States v. Pineda-Moreno. As I mentioned, Mr. Pineda-Moreno requested an en banc rehearing of arguments, which was denied. Chief Judge Kozinski wrote a dissent upon that denial, which is available in full here.

His dissenting argument can be divided into two prongs: (1) a citizen's right to privacy, and (2) the limitations which should be placed on law enforcement officers. But before we get to that, it's worth taking a moment to enjoy the literary reference in the last blistering sentences of his opening paragraph:

"The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it's here at last."

Right to Privacy
The chief judge is concerned about the erosion of the right of privacy in the curtilage of one's home. He cites Oliver v. United States for the position that the curtilage is entitled to the same level of privacy as the interior of the home:

"[O]nly the curtilage...warrants the Fourth Amendment protections that attach to the home.  At common law, the curtilage is the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life,' and therefore has been considered part of home itself for Fourth Amendment purposes.  Thus, courts have extended Fourth Amendment protection to the curtilage." 

In some cases, Kozinski points out, whether the curtilage was invaded is a question of fact - the argument is about whether there was an invasion at all. Here, the government conceded that there was an invasion. Therefore, Kozinski argues, all rights and expectations of privacy which normally apply to the interior of a man's home should apply as well.

In this case, however, the panel stated the rights and expectations of privacy would apply to the curtilage only if it was separately established that they should apply for some reason. Kozinski supports his argument with a discussion of limited right to enter another's property. He mentions postal workers, repairmen, employees of utility companies, gardeners, and delivery men, all of whom have a limited right to enter property for the purpose for which they have been employed or permitted. Others who have not been granted a right would not be welcome on the property.

In its original opinion, the panel had used the example of neighborhood children, who could have entered the driveway and crawled under Mr. Pineda-Moreno's Jeep to retrieve a lost ball. Chief Judge Kozinski argues that such children would be uninvited, and often enter another's property for reasons not nearly that innocent or innocuous. The "urchins," he says, might "jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas." To allow law enforcement officers to do all of those things just because they are things which unruly children might do "spells the end of Fourth Amendment protections for most people's curtilage."

The few people whose curtilage would not be invaded, he argues, are the wealthy; the poor are not represented in the state or federal judiciary, but that does not mean they are not entitled to the same protections as those who are represented.

Limitations on Law Enforcement
The more controversial of Chief Judge Kozinski's arguments is that proper law enforcement requires human action. He is troubled by the use in this case of satellite-based GPS tracking devices which "can record the car's movement's without human intervention--quietly, invisibly, with uncanny precision." He cites the previously-mentioned Knotts case to distinguish the GPS tracker from the beeper used in Knotts:

"The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways....But the beeper could perform no tracking on its own, nor could it record its location."

Kozinski seems to focus on the expectation of the citizen. He notes the general lack of expectation of privacy when one is in public spaces, but also identifies ways to preserve privacy, even in public:

"By traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed.  But there's no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention."

Chief Judge Kozinski notes that technology is improving, and we must account for that. He is a believer in the original intent of the Fourth Amendment, and feels its protections need to be adjusted to account for ever-advancing technological devices:

"The Supreme Court has recognized that advances in  'police technology [can] erode the privacy guaranteed by the Fourth  Amendment.' To guard against this, courts 'must take the long view, from  the original meaning of the Fourth Amendment forward.'"

Kozinski seems unconcerned with the reason for one's desire to evade detection and surveillance. Rather he is opposed to the general erosion of the right to privacy, because it is a slippery downward slope. Even law-abiding citizens, he seems to indicate, don't want to live in a police state of constant surveillance.

I imagine he's right about that.

GPS Surveillance, Part I - The Facts and Arguments

2010-09-22T11:22:00.137-05:00

A number of news sources [including Reuters, Time Magazine, Yahoo! News, and ComputerWorld (an IT magazine)] reported earlier this month on a decision handed down by the Ninth Circuit Court of Appeals regarding warrantless entry onto private property and GPS tracking by government agents. The full opinion is available here.

The criminal defendant in this case is an Oregonian named Juan Pineda-Moreno. In 2007, by all accounts, DEA agents suspected Mr. Pineda-Moreno of growing marijuana. Agents entered onto his property between 4:00 and 5:00 in the morning on two occasions to place a GPS tracking device on his vehicle, which was parked in a driveway a few feet from his trailer home. (They placed a tracking device on his car on five other occasions when the car was parked on a public street or lot.)

During criminal proceedings in the district court, Mr. Pineda-Moreno sought to suppress all evidence against him which had been obtained using the GPS. The district court denied his motion. Mr. Pineda-Moreno conditionally plead guilty to charges of manufacturing marijuana and conspiracy to manufacture marijuana; the condition was that he be allowed to appeal the rejection of his motion to suppress the evidence.

A Ninth Circuit three-judge panel upheld the lower court's ruling regarding the admission of evidence. Their opinion is available here.

Mr. Pineda-Moreno sought an en banc review of the decision, which was denied. Chief Judge Alex Kozenski wrote a scathing dissent of the panel's decision upon the denial of the en banc hearing. The dissent is available here.

In case you don't want to read it, the very short summary goes like this:
The court finds that Mr. Pineda-Moreno has no reasonable expectation of privacy either in his driveway or concerning the exterior of his vehicle.

For a slightly longer analysis:

(1) Fourth Amendment Violation on Private Property
Mr. Pineda-Moreno first argued that, by entering his driveway between 4:00 and 5:00 am and attaching tracking devices to his vehicle, the DEA agents violated his Fourth Amendment rights (protection from unlawful search and seizure). This breaks down into two responses:

(a) Curtilage
In responding to this argument, the judges relied on an earlier case called United States v. McIver. In McIver, the court first found that the car in question had been outside the curtilage of McIver's home, so he had no expectation of privacy.

Curtilage is defined in Black's Law Dictionary (citing various cases) as "the inclosed space of ground and buildings immediately surrounding a dwelling house," or alternatively as "a small piece of land, not necessarily inclosed, around the dwelling house, and generally includes the buildings used for domestic purposes in the conduct of family affairs." Traditionally, the area of curtilage around a house was afforded some degree of privacy - perhaps not as much privacy as the interior of the home, but more privacy than is given to a sidewalk or street in front of a home.

In Pineda-Moreno, unlike in McIver, the agents conceded that the vehicle was parked within the curtilage of the defendant's dwelling place. However, the judges found that concession largely irrelevant in light of their pronouncement that his driveway was "only a semi-private area." They concluded the followng:

"in order to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing the special features of the driveway itself (i.e. enclosures, barriers, lack of visibility from the street)....To the contrary, [Pineda-Moreno's]driveway had no gate, no 'No Trespassing' signs, and no features to prevent someone standing in the street from seeing the entire driveway....Thus, because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of the home."

The time of entry onto the property by the DEA agents is immaterial.

(b) Vehicle
Second, the three-judge panel found that there was no cognizable "search" as recognized under the Fourth Amendment, because the tracking device was attached to the outside of the vehicle, where there is no reasonable expectation of privacy.

(2) Fourth Amendment Violation on Public Property
Mr. Pidena-Moreno's second argument was that the agents violated his Fourth Amendment rights by attaching the GPS tracking device to his vehicle while it was parked in a public place, but this was quickly shut down by the court, due to the lack of a reasonable expectation of privacy in a public place.

(3) Fourth Amendment Violation due to Continuous GPS Tracking
Mr. Pineda-Moreno's final argument was that the agents violated his Fourth Amendment rights by continuously tracking the location of his vehicle, since such devices are not generally used by the public.

In his argument, Mr. Pineda-Morena acknowledged the case of United States v. Knotts, but believes that the reasoning in that case was challenged by a later case of Kyllo v. United States. In Knotts, the Supreme Court found that attaching a beeper device to a vehicle did not constitute a cognizable "search" because a "person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." In Kyllo, the Supreme Court found that use of thermal imaging technology to obtain "any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search--at least where ... the technology in question is not in general public use."

The judges disagree, pointing out that the difference between the two cases is what the original search would have been, not what technology was used as a substitute for that search. In Kyllo, the original search (entering the home to obtain information contained therein) would have qualified as a "search" under the Fourth Amendment, so the technological substitute for such a search does as well. However in Knotts, as in Pineda-Moreno, the original search would have entailed following a car as it drove down public thoroughfares, which does not constitute a "search" under the Fourth Amendment; therefore neither does the technological substitute for such a search. They conclude with this: "We have never equated police efficiency with unconstitutionality and decline to do so now."

WedLock

2010-09-17T11:27:00.000-05:00

Earlier this summer, an attorney friend of mine and I got discussing health insurance. Particularly, we were debating the pros and cons of even having insurance, since you never know when you'll need medical care. It came down to this: insurance is one of those things you'll hate having until you really need it (assuming your insurance company stands behind you when that time comes).

Somewhat inevitably, the conversation shifted slightly to the idea of legal insurance. I knew that it existed in some form - x number of hours of consultation with an attorney, for the bargain price of $y per month. I do a lot of family law, so we got thinking about divorce insurance. Did this exist? If so, did people actually use it? Do you need an insurance broker's license to sell it?

Turns out, divorce insurance does exist, though it appears to be a very new invention - the last few months or so. A company called WedLock (owned by SafeGuard Guaranty Corporation out of North Carolina) appears to be leading the charge, mostly through scare tactics. The cost of a divorce quoted on their website is not necessarily untrue, but in most cases applies to a higher-asset divorce. For a couple just trying to divide a small house and modest some bank accounts, and even sometimes when there are children involved, the costs usually only get that high if there is bitter fighting over the coffee table, the blender, the DVD player, the bathmat, the alarm clock, the fruit basket, the.... You get the picture. Most folks, in my experience, are able to sort out the small details themselves, and the cost doesn't get anywhere near the $15,000 to $30,000 quoted on the site.

High-asset cases, on the other hand, can easily reach that level, even when the parties are cooperative. More assets means more paperwork to swap and sift through, and that takes time. And time, as they say, is money.

Undoubtedly, other companies will jump on board with WedLock in the coming months and years. When that happens, there are two key things to think about:
1. Do you really need or want divorce insurance?
2. If you think you do, which company/policy best suits your needs?

Moving in with a Grandma

2010-09-13T13:13:00.003-05:00

How would you like to move in with a grandma? Here's the catch: she's not your grandma.

The Wall Street Journal reported on a strange bankruptcy in Long Island. The 81-year-old widow who owned the house in question transferred it to her two children, reserving a life estate for herself. Her son declared bankruptcy, and now his half interest in the home is on the auction block. The buyer, however, will have to abide by the original terms of the transfer, meaning Grandma can continue living in the house alone until her death. Then it will be up to the buyer and Grandma's daughter to sort out who gets what. According to the son's bankruptcy attorney, "Whoever buys this, buys a lawsuit."

Public Service in the Down Economy

2010-09-07T13:12:00.002-05:00

A New York Times article published last month told the story of Nathan Richardson, a University of Chicago Law School graduate who secured a coveted job offer at the LA-based firm of Latham & Watkins, P.C. When the economy went south, Latham & Watkins, like many large firms, offered newly-minted attorneys a stipend of tens of thousands of dollars, usually about half of their first-year salary (a first-year salary would likely range from $100,000 to $150,000) to not come in to work. That's right, these lawyers were paid for the year to do nothing.

But as ambitious young attorneys, most of them decided to do something anyway. Many, like Richardson, went to work at public interest law firms, and the lucky ones were even able to work pro bono thanks to the stipend they received from the deferring firm. As you can imagine, this was great news for the not-for-profits and the public interest firms, who were now getting top-notch students who were used to working hard and ambitious to make an impression. That extra manpower certainly helped to clear many a backlogged file cabinet.

According to the Atlanta Journal-Constitution, the Georgia Supreme Court issued a rule late last year allowing limited privileges for attorneys who were not licensed to practice in Georgia and were willing to volunteer their time. The non-licensed attorneys could work for a non-profit or one of a number of government agencies or offices, and their work had to be signed off on by a licensed attorney working for that organization. This rule allowed deferred associates or attorneys looking to try out a new career path to get real, hands-on experience, while also providing extra manpower to help out cases which were building up, often due to hiring freezes instituted by the government or governing board.

These circumstances come together to improve the situation for public interest law firms and not for profits - ambitious new lawyers, or lawyers seeking to reinvigorate their passion, are flooding the market - often for free or cheap.

Not quite everything is coming up roses though. Time Magazine article states that the average law student who graduated in 2009 was burdened with $73,000 in debt. [Repayment terms vary, of course, but those loans would probably require a monthly payment of something on the order of $1,000 to $1,500.] The Time article quotes Larry Kramer, dean of Stanford Law School, who laments the lack of a suitable loan forgiveness or similar program to help students who could not only not afford to work pro bono, but also those who are having trouble making loan payments even if they are receiving a small salary from their interim employer.

The Un-Divorceds, and the Never-Marrieds

2010-08-30T10:47:00.002-05:00

Another New York Times article published recently addresses the forces which cause couples to remain married, even though their relationship does not fit the standard definition of "married." Perhaps they are living in separate bedrooms, or perhaps they are living on opposite coasts.

The following are some of the primary reasons, according to the article's author, why couples sometimes don't feel it's necessary to divorce:

- Aversion to lawyers/courts
- Desire to avoid a potentially ugly divorce
- Maintaining health insurance for both parties through the employer of one party
- Benefits which come from filing joint tax returns
- Future Social Security benefits
- No desire to remarry, or an excuse not to remarry
- Inability to sell jointly-owned home

The bottom line appears to be financial; interestingly, the majority of couples who choose not to divorce make that choice for the money and benefits, rather than for, for example, their kids. Is this a reflection of our financially-strapped times? Definitely.

But does it also indicate that, as a society, we feel differently about divorce and rearing children than we did previously? Probably so. The rate of unmarried births is rising, according to statistics in the last post. The societal trend for change of this type is circular: things which are more common are more accepted, and as things become more acceptable, they become more common.

Marriage and Divorce Statistics

2010-08-23T14:58:00.002-05:00

Over the last few decades, divorce rates have actually fallen. According to a USA Today article, divorce rates peaked in 1981 at a rate of 5.3 divorces per 1,000 people. When the article was published in 2007, that rate had fallen to 3.6 divorces per 1,000 people. Provisional CDC data through August 2009 show an even lower rate: 3.4. There is debate over the oft-cited statistic that half of today's marriages will end in divorce; "experts" cited in the above-linked USA Today article indicate that the divorce rate measured by that statistic is somewhere between 40 and 45%.

It is generally agreed that divorce rates are lower among more highly-educated and affluent couples, as well as among couples who delay marriage (USA Today, Time Magazine). Similarly, a research paper out of Harvard University entitled The Spread of Single-Parent Families in the United States since 1960 reports that "whereas divorce leveled off around 1980, the fraction of children born out of wedlock continued to rise until the mid-1990s. Since then the rate of increase has slowed dramatically," though it is still increasing. The paper also indicates, though, that much of this rise may be due to unmarried but cohabitating couples, although research is mixed regarding whether those couples will eventually marry or split up.

The Recession and Family Life

2010-08-16T12:34:00.005-05:00

Judith Warner wrote an article for the New York Times on August 6, 2010, entitled "What The Great Recession Has Done to Family Life." The following is an excerpt:

"The most devastating losses in household wealth over the past two  years have been suffered by the middle class. And families are fraying  at the seams. The Pew poll showed nearly half of people who had been  unemployed for more than six months saying their family relationships  had become strained, and a New York Times/CBS poll of unemployed adults  last winter found about 40 percent saying they believed their  joblessness was causing behavioral change in their children.

 Parents who have jobs are working longer hours than ever. Mothers are  taking shorter maternity leaves. The birth rate is on the decline. The  divorce rate is declining, too — it’s too expensive for people to break  up their households — but that’s not necessarily a family-friendly  thing, as a report from the Council on Contemporary Families noted in  April: 'We know from the experience of the Great Depression of the 1930s  that divorce rates can fall while family conflict and domestic violence  rates rise.'"

The costs of divorce and running two households are daunting, especially during these tough times. However, it is important to remember that your and your family's safety should always be your top priority.

State-by-State Divorce

2010-08-10T13:37:00.002-05:00

The Pew Research Center compiled statistics on marriage and divorce rates across the country, and came out with this interactive comparison map.

Missouri has more people married, and more people divorced, than the national average. Consequently, Missouri also has a higher-than-average percentage of people married 3 or more times (7% in Missouri versus 5% nationwide).

(There are also a number of interesting "Related Reports" on the sidebar of the Pew Research Center page.)