Friday, April 20, 2012

Emotional Distress Damages for the Death of a Pet

Illinois is slowly coming around to the national trend of treating pets as more than personal property.  For over 100 years in Illinois, if your dog was killed due to the negligence of another, the courts would only award you damages for the actual value of the dog (a piece of property), or less than $100 in most cases.  

In January 2009, I wrote THIS post about an Illinois appellate court case that held that the proper basis for determining the measure of damages for the loss of a pet is to determine the pet's "actual value to the plaintiff."  In that case, the plaintiff had spent $5,000 in veterinary bills to try to save his dog, so the court awarded the plaintiff $5,000.

Other states are going way beyond the "actual value to the plaintiff," however.  Courts is certain states are starting to award damages for emotional distress for the death of a pet.  HERE is an article about a trial court in Denver that awarded a woman $65,000 for the death of her dog.  She had hired a maid service to clean her house.  While they were cleaning her house, they let the dog run out into the street where it was run over by a car.  The maid apparently took the dog back into the house and tried to pretend that nothing happened.  When the woman returned home, she found the dog dead beneath a table.  Surely the cover-up played into the award, but it is still significant nonetheless.  The article also notes that the plaintiff's initial demand was $25,000 and that the cleaning service offered $2,000 to settle.

HERE is another article about an appellate court opinion out of Texas that overturned a lower court's decision to dismiss a lawsuit that sought to recover "sentimental" or "intrinsic" damages when the plaintiff's dog was mistakenly euthanized by the Animal Control Department.  The appellate court ruled that when personal property has little or no market value, damages can be awarded on the basis of the property's intrinsic or sentimental value to its owner, similar to the Illinois decision that I referenced above.

And, you will all surely remember THIS post I wrote about special damages being awarded in New Jersey in 1941 for the death of a dog that had been trained to work in a vaudeville act.  

So, basically what I am trying to say is that if anybody's dog was recently killed, you should give me a call.  Have a nice weekend. 

Wednesday, April 18, 2012

"Turn Every Goddamn Page"

Today's post at the Litigation and Trial blog is titled "How to Excel at the Basics as a Young Litigator."  The post gives several tremendous tips for litigators, young and old alike.  
My favorite tip is called "Turn every goddamn page."  The author points out that most trials are not won on a "Perry Mason moment" where plaintiff's counsel destroys a key witness on cross-examination and elicits a damning piece of evidence that completely seals the deal.  Rather, the lawyers who win really good cases do so long before the trial even starts.  Here is my favorite passage of today's advice:
Cases on TV are won through brilliant, impromptu cross-examinations at trial. Real cases are won through dogged investigation and by relentlessly investigating until you have both found and turned every goddamn page. 
How do you do that?  
First, ask your client to give you every document they have, and to explain what they are. Second, serve the opposing party with custom-tailored interrogatories and requests for documents asking for everything. You won’t get everything so, third, serve requests for admission demanding they admit those documents are all the responsive documents. That will get you more, but still not everything, so, fourth, notice the deposition of the records custodian for the defendant, at their place of business, with custom-tailored document classes identified. Fifth, when there, ask the deponent if they’re the most knowledgeable person about each class and, if not, ask who is, and then get that person to come down (remember, you’re already there and so are they), and ask them, and keep going until you’re confident you have everything you can get. 
Did I mention you also need to scour the Internet, and to call other attorneys who litigated similar cases? 
It’s a laborious, time-consuming process, and it’s not necessary for every case. But you need to learn how to dig for documents, and then, once you have them, how to develop the patience to “turn every goddamn page.”

Thursday, April 12, 2012

Slow Justice

Most of you will remember that I received a speeding ticket on the way to court several months ago.  I wrote THIS blog post about my attempt to have the ticket dismissed.  Several people have asked me for updates lately.  I still haven't argued my motion to dismiss yet.  You can be sure that I will update you once there is a resolution on my ticket.  

I just checked the dates as I was writing this post.  I was ticketed on January 17th.  The first court date was March 2nd.  At that time, the Judge wanted to continue the case to read the case law.  It was continued to April 13th.  I just got a call from the prosecuting attorney who informed me that the Judge was not going to be in court tomorrow, but that another judge would be sitting in his place.  So, we just agreed to a continuance to May 4th.

I will let you know what happens on May 4th.  Hopefully, it is good news.

Tuesday, April 10, 2012

Is Swag Admissible in Court?

Three juveniles in Galveston, Texas allegedly committed a small-time burglary a couple of weeks ago.  They broke into an "amphibious vehicle" at a local water park and stole the fire extinguisher, doing some minor damage in the process.  They were captured on surveillance video, part of which is linked above.  

One of the suspects is apparently known throughout his high school for his "swag," or his "signature dance move," which he "regularly performs in the hall ways," according to the local Police Captain Jeff Heyse.  Apparently, someone who knows this kid's swag identified him to police and he was arrested.

So, the question, as presented by Lowering the Bar, the legal humor blog, is whether this video will be admissible to identify him based on his swag, even though his face is not clearly visible.  According to Lowering the Bar, it may be admissible under Texas Rule of Evidence 406, which says that "evidence of the habit of a person... is relevant to prove that the conduct of the person... on a particular occasion was in conformity with the habit or routine practice."

The Lowering the Bar blog notes that a creative defense lawyer would probably parade several witnesses through the courtroom and have them all perform this dance move in front of the jury to show that this kid's swag is not so distinctive after all.  

I wish I could think of a good catch phrase for the closing argument, similar to the Johnny Cochran classic "if it doesn't fit, you must acquit."  Anybody got one for me????????

The Second District Court Continues to Expand the Definition of Resisting/Obstructing in People v. Nasolo

Earlier this year, the Illinois Supreme Court expanded the Resisting/Obstructing statute to included non-physical acts of obstruction within the purview of 720 ILCS 5/31-1 in People v. Baskerville, 2012 IL 111056. Following suit, the Second District Appellate Court expanded the Resisting/Obstructing statute to included being uncooperative with booking procedures. People v. Nasolo, 2012 IL App. (2d) 101059 is one of the first appellate court decisions since Baskerville, and it represents an uncomfortable shift toward criminalizing uncooperative and belligerant attitudes with police.

In People v. Nasolo, the defendant was charged with obstructing under 720 ILCS 5/31-1 for "refus[ing] to be fingerprinted or photographed." 2012 IL App. (2d) 101059 ¶ 2. At trial, the officer testified that the defendant refused to answer questions during the booking process, refused to be fingerprinted, and refused to be photographed. 2012 IL App. (2d) 101059 ¶ 5. The jury found Nasolo guilty of obstructing a peace officer. On appeal, the defendant contended that refusing to be fingerprinted or photographed was not a violation of the Resisting/Obstructing statute.

For those familiar with the law on section 31-1, this case is very similar to People v. Weathington. In Weathington, the defendant refused to provide "name, address, birth date, birth place, social security number, occupation, and physical description" to officers in lock-up. 76 Ill.App.3d 173, 176 (4th Dist. 1979). The Fourth District Court noted that it would be "incongruent to say that one may remain silent and yet must provide "booking" information."  Id. at 177. The Illinois Supreme Court narrowed the Fourth District ruling noting that "[n]o physical act of resistance or obstruction occurred; merely argument coupled with eventual cooperation. 82 Ill.2d 183, 187 (1980); see also People v. Fernandez, 2011 IL App (2d) 100473 ¶ 7 ("Arguably, the supreme court’s affirmance narrowed the appellate court’s holding somewhat. The supreme court seems to have held only that a delay in providing the information is tantamount to argument with the police.")

When dealing with the refusal in Nasolo, the court focused not on any physical act, but rather whether the defendant actually obstructed the performance of the officer's duties.  This comports with the recent Illinois Supreme Court case, People v. Baskerville, 2012 IL 111056, in which the Illinois Supreme Court did away with the physical act requirement of the Resisting/Obstructing statute.

This rational, however, has real problems when considering the defendant's right against unreasonable searches and seizures under the Fourth Amendment.  U.S Supreme Court precedent subjects fingerprinting to Fourth Amendment protections. See Davis v. Mississippi, 394 U.S. 721, 727 (1969)("Detentions for the sole purpose of obtaining fingerprints are no less subject to the constraints of the Fourth Amendment.");  Hayes v. Florida, 470 U.S. 811, 817 (1985)("There is thus support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act . . ").  Police officers need at least reasonable suspicion, if not probable cause, to fingerprint a defendant.

Importantly, the defendant in Nosolo was not physically interfering with being fingerprinting.  The allegations and testimony simply revolved around the defendant's refusal.  Knowing that fingerprinting is a search, has the Second District now criminalized asserting defendant's right to refuse searches under the Fourth Amendment?  Even those searches which are authorized, defendant's can still refuse or deny consent. At law, the defendant's consent, or lack thereof, is integral in determining whether a search under the Fourth Amendment was reasonable.People v. Luedemann, 22 Ill.2d 530, 544 (2006)(In Illinois, there are three levels of citizen-police interaction: consensual encounters, brief investigative detentions based on reasonable suspicion, and arrests supported by probable cause.)

Only months after the problematic People v. Baskerville decision was released, the Illinois Appellate Courts are already applying this precedent in problematic ways.  The line between defendant's rights to remain free from unreasonable searches and seizures and obstructing police officers' authorized acts has become thinner and more indiscernible.

Thursday, April 5, 2012

Westlaw Headnote of the Day

The legislature is presumed to know the rules of grammar.

State v. DeMarco, 416 A.2d 949 (N.J. Super. Ct. Law Div. 1980)

Wednesday, April 4, 2012

Pro-Cat or Anti-Cat??

First, let me say that I am not exactly a cat person.  No offense to the cat owners out there, but I really don't understand cats or people's attraction to them.  If you're going to the invest the time and money it takes to keep a house pet, why wouldn't you get an animal that actually seems to appreciate your efforts... like a dog??

But, I digress.  I really want to talk about a trust department's possible breach of fiduciary duty.  Today's Chicago Tribune contained an article about a woman from Berwyn who passed away recently at the age of 76.  She had no surviving relatives.  In her will, she directed that any cat or cats that she owned at the time of her death be euthanized.  Sounds like a reasonable request to me.

The meddling trust officers at the Fifth Third Bank, however, felt differently.  They petitioned the Cook County probate court to set aside that provision of the will because they had found a shelter to take Boots, the cat at the center of the controversy.  On Monday, the Court granted the request and Boots was spared the eventual death sentence.

My question is this: Doesn't the trust department have a duty to carry out the plain language of the will?  What makes them think that they can petition the court to set aside any provision of the will?  I ask these questions tongue-in-cheek, of course, because there are plenty of reasons why this would happen and it happens all the time.  I'm really just trying to rile up the cat lovers!! Have a good one!!!

The Tribune's article is HERE.