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Comparative Negligence explained perfectly

California uses the legal doctrine of “Comparative Negligence” in determining lawsuits. While we spent great time learning this in law school, here is an example that nails it immediately:

A toddler was tragically killed at Disneyland when he stepped into a manmade lake and was taken by an alligator. The lake was marked with signs reading “No Swimming”, which the family perhaps ignored. Disney would not seem to be fully liable because they posted a warning and, if the family saw the sign, they assumed the risk.

However, if Disney knew…or should have known…that alligators were present or possibly present, the warning of “No swimming” was inadequate (like a “no trespassing” sign where you really mean “beware of killer pit bulls”).

Arguably, the signs should have said, “No Swimming. Alligators.” That would seem to be a warning more likely to be obeyed.

If these facts are accurate, a jury will likely find comparative negligence as to both Disney and the family. They will determine percentage of fault…such as that Disney was 30% responsible…and then apply the percentage against the total dollar amount they feel appropriate to the situation. If $1 million in damages, Disney’s 30% means they pay $300,000.

There you have comparative negligence in a nutshell.

Father jailed for asking for child support modification

The Bergen Dispatch (NJ) reports that Long-divorced Henry Peisch, 56, has seven children, but only one is still living with his ex-wife (who had originally been awarded $581 monthly support for all seven). (Three children are now independent, and three others successfully petitioned courts to live with Henry.) The resultant hardship (the $581 remains in effect) caused Henry to ask the Bergen County, New Jersey, Family Court several times for a “hardship” hearing, which the court denied (thus even defying the New Jersey Supreme Court). On April 8, Family Court judge Gary Wilcox, noting Peisch’s appearance on a related matter, spontaneously “granted” him his “ability to pay” hearing (with thus no opportunity for witnesses or evidence-gathering) — and summarily jailed him for missing some $581 payments (because, the judge concluded, he did not “believe” Peisch’s hardship claims). [Thanks to “News Of the Weird”]

You have the right to remain silent unless you try

Motorist Rebecca Musarra was stopped for speeding in October 2015 by state troopers in New Jersey, and dutifully handed over her license, insurance and registration, but declined to answer the troopers’ “do you know why we stopped you” questions. Annoyed at her silence, troopers Matthew Stazzone and Demetric Gosa threatened several times, with increasing aggressiveness (according to dashboard video obtained by NJ Advance Media), to arrest Musarra for “obstruction.” Musarra pointed out that — as nearly every American knows — she has the right to remain silent. The troopers nonetheless arrested her (then recited, of course, her “right to remain silent”). After nearly two hours back at the station, a supervisor offered a weak apology and released her. Musarra, an attorney, unsurprisingly has filed a federal lawsuit. [reprted by NJ.com, 5-5- 2016, via newsoftheweird.com]

Sleeping on the job

Nicholas Ragin finally got his conviction overturned in March, but it took 10 years before the U.S. Court of Appeals declared that his “right to counsel” had been violated because his lawyer slept during various parts of Ragin’s conspiracy and racketeering trial. (His sentence had 20 more years to run.) One juror later recalled that lawyer Nikita Mackey slept “almost every day, morning and evening” for “30 minutes at least.” Once, according to court documents, after the trial judge called Mackey’s name loudly, only belatedly getting a response, Mackey “jumped up and sort of looked around and was licking his lips … and looked sort of confused and looked around the room.” (The prosecutor said she intends to retry Ragin.) [WYFF-TV (Geenville, S.C.), 3-14-2016] [The Independent (London), 3-13-2016] (source: “News of the Weird”)

Court of Appeal sides with Warren Law Group in case against child support agency

Our firm’s latest win in the California Court of Appeal. The 4th District’s 30-page ruling blisters the Department of Child Support Services and favors our client, who beat incredible odds to overturn the trial court’s order. Here is that appellate opinion: County of Riverside v Briscoe

Discovery is now a right to family law parties, even after judgment

A great and important California law is on the books. It may not sound like much to read but in real world application it is huge. After the court issues its initial judgment, such as granting a divorce or making a child custody determination, there has been no automatic right to discovery, which is the procedure by which one party can make the other party turn over evidence such as financial records or appear at a deposition. The law had been that you had to ask the judge’s permission, and the judge could deny the request.

This changes on January 1, 2015. The new Family Code section 218 grants an AUTOMATIC right to conduct post-judgment discovery on any issues raised in the new request for orders. Further, discovery is usually cut-off 30 days prior to the date set for the first hearing, but now for family law cases the 30 days floats forward for any continuance or trial setting.

This is a great victory for justice, and to assure that our clients have a full and meaningful day in court.

Skirting the Law Making Process

March 2014 was another great example of knee-jerk lawmakers being more interested in making a statement than making a workable law.

This was the month that the Massachusetts top court threw out a conviction against Michael Robertson for taking “upskirt” photos on a train. The law only applied to nude or partially nude victims. A person wearing a skirt is neither.

So the law needed to be changed. Good idea too. But in the rush to put a new law on the books only 24 hours later, lawmakers voted to prohibit secret pictures of “sexual or intimate parts.”

Good idea there too. Unfortunately, in the rush, they failed to realize this still does not impact upskirt photography if the subject is wearing underwear.

To view this vague terminology otherwise, secret photos at the beach are also prohibited. A bikini bottom is as revealing as most underwear (or more so). Or is a bikini bottom not showing something sexual or intimate? What about dancewear?

The difference is that the person wearing a skirt in public has a reasonable expectation of interior privacy above her hem. But there is a difference between “intimate parts” vs. “intimate wear”, and the new law failed to include the latter.

In their rush, the lawmakers failed to make the necessary change, and upskirters will still get their cases tossed out of court.

Great lawyering!

Undocumented immigrant Jose Munoz, 25, believed himself an ideal candidate for President Obama’s 2012 safe-harbor initiative for illegal-entry children, in that he had been brought to the U.S. by his undocumented parents before age 16, had no criminal record and had graduated from high school (with honors, even). Since then, however, he had remained at home in Sheboygan, Wis., assisting his family, doing odd jobs and, admittedly, just playing video games and “vegging.” Living “in the shadows,” he found it almost impossible to prove the final legal criterion: that he had lived continuously in the U.S. since graduation (using government records, payroll sheets, utility bills, etc.). After initial failures to convince immigration officials, Munoz’s lawyer succeeded — by submitting Munoz’s Xbox Live records, documenting that his computer’s Wisconsin location had been accessing video games, day after day, for years. [Journal Sentinel, 3-24-2013, as reported at newsoftheweird.com]

Penalty for judicial corruption?

Our justice system faces no greater risk than corrupt judges. That is why we are shocked and saddened to learn there are still no criminal charges against Richard W. Stanford, Jr., an Orange County Superior Court judge who was removed from the bench for fixing parking tickets. While some may feel the loss of his job was punishment enough, it is not. How can it not be a crime for a judge to interfere with the administration of justice? How can corruption in a public official not be a crime? How can there be orange jumpsuits for so many pot smokers but not one tailor made for one who betrays the robes of his duty? In the private sector, should the penalty for embezzlement simply be you lose your job? How is it different where, as here, a judge stole money due to the county for traffic fines? Does it matter that he did not keep the money but gave it as a benefit to friends and family? It is worth noting that two of the tickets he allegedly fixed were for his church pastor. Well, the fact that his own pastor even made the request gives us a clue about how Judge Stanford gets his morals.

Tortfeastor of the Assumption

David Jimenez prayed regularly to a large crucifix outside the Church of St. Patrick in Newburgh, N.Y., based on his belief the crucifix was responsible for curing his wife’s cancer. He even got permission from the church to spruce up the structure, as befit its power. While clearning it, the 600-pound crucifix came loose and fell on Jimenez’s leg, which had to be amputated. Jimenez’s $3 million litigation against the archdiocese goes to trial in January.

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