Man intentionally passes gas in face of police officer, gets charged with battery.

First, let me apologize for the subject matter of my last two posts, but the intersection of bodily functions and the law has become quite crowded recently.

Yesterday, it was reported that a West Virginia man was pulled over and arrested for DUI. While at the police station having his fingerprints taken, the man "moved closer to the officer and passed gas on him." The investigating officer remarked in the criminal complaint that the odor was very strong. The man is now charged with battery on a police officer, as well as DUI and obstruction. Click here for full details.

I started to wonder whether that would actually be a battery in Illinois.

In Illinois, a person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual. 720 ILCS 5/12-3 (a).

I haven't read the annotations, but I doubt that passing gas equals physical contact.

I think the officer would have a better chance filing a civil suit for battery.

According to the Restatement of Torts 2d, an actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results.

I think the cop has a case for the tort of battery. Now the question becomes how much are his damages. I would love to be on that jury.

What the Heck is Elder Law Anyway?

Before I started practicing elder law, my conception of the field was a foggy notion of elder abuse cases, and maybe something to do with helping Seniors take care of their special needs. Those special needs? Hmmm...not really sure. Well, there are so many facets to elder law that not even an elder law attorney is necessarily well-versed in all of them! But, lest anyone else walk around out there with the same foggy idea of elder law that I had, I thought I'd post a thumbnail sketch of some of the more widely-practiced facets of elder law.

As usually comes to mind first, elder law does encompass the area of elder abuse. This includes not just situations of neglect in the medical sense by nursing homes or in-home caregivers, but also financial abuse by those who convince Seniors to invest in various inappropriate financial instruments, or maybe even a family member with financial powers of attorney. There was a recent article on an Elder Law website about a case where the surreptitious taping of a husband in the wife's nursing home room violated the husband's Fourth Amendment rights. There was a complaint of sexually inappropriate contact by the husband, and nursing home officials reported it to authorities. They obtained a search warrant to install a hidden video camera in the room and the husband was subsequently arrested and charged with second-degree sexual assault for having intercourse with his wife while she was unconscious. The circuit court suppressed the videotape evidence, ruling that the husband had a reasonbale expectation of privacy in his wife's nursing home room. That article was WAY more interesting than the ones on tax that are also on the website! :^)

Encroaching upon the elder abuse arena is the area of Elder Rights. Some of the elements of Elder Rights include nursing home transfer or discharge rules, contract rights when one is dealing with Assisted Living or any Continuing Care-type community, issues related to receipt or purchase of long-term care insurance, housing issues such as discrimination or reverse mortgages, pension and retirement issues, or age discrimination in employment. Just by this short list describing two areas of elder law, you can see that this is a vastly varied field that encompasses all manner of different areas of law, as well as various arenas where one would practice. An elder law attorney could find themselves not just at the courthouse, but before an Administrative Law Judge, working with various public Commissions such as the Equal Rights Commission or the Department of Human Services, and even working in a mediating fashion with private entities such as long-term care facilities and banks!

Another area of elder law, where most of the action takes place in probate court, is guardianship. Many times a family member -- usually a child -- consults an elder law attorney when their parent can no longer handle their affairs and more than just a power of attorney is needed. A growing area within this particular segment is in voluntary guardianship. As Seniors live longer with specific long-lasting diagnoses (such as Alzheimer's), some of them are seeking the services of an elder law attorney to do a voluntary guardianship. These voluntary guardianships are usually done on a springing basis, so that as the Senior progresses in their journey of decline they have their affairs in order -- not just for a distribution to heirs at death -- but for their long-term care needs. Which brings me to another area of elder law -- assisting clients with long-term care planning. This area encompasses all manner of services one can provide to a Senior looking at possible long-term care in the future. This ranges from helping the Senior with long-term care placement at a facility or with in-home care, voluntary guardianship or other planning tools for someone to manage the Senior's affairs after they are no longer able, doing estate planning to help the Senior pay for their long-term care costs, advising about or planning for any future public benefits, such as Medicaid or Veterans Benefits, that the Senior may be or become eligible for, to providing referrals or information for caregiver stress or other sources of support for the family.

As you can see, the elder law attorney needs to be well-versed in a vast array of legal areas. In addition to the above, the elder law attorney may also do normal estate planning, estate administration, trust administration, financial planning, tax, or even family law. (Believe it or not divorce is a Medicaid-planning strategy, although not a common one). Although it doesn't seem likely, elder law could even encompass criminal law should one of your elderly clients run afoul of the law! So, in a nutshell, just what the heck is elder law? Anything and everything!

Defendant Tosses Excrement at Markham Courthouse Judge

From Friday's Chicago Tribune:

Murder wasn't the only thing most foul at the Markham Courthouse on Friday.

Cornell Tyler, 37, of Robbins was hauled away after he announced his name was "Self Destruction" and flung human excrement around the courtroom.The incident took place shortly after noon as Tyler appeared before Circuit Judge Kathleen Panozzo during a routine status hearing. He is charged in the 2005 slaying of Ghada Elayyan in Robbins.

"He was in the back prior to his appearance before the judge, and he was given some lunch and then used the bathroom and used one of the lunch baggies to store the excrement," said Penny Mateck, a spokeswoman for the Cook County sheriff's office.

Assistant State's Atty. Ted Lagerwall, who is handling Tyler's case, said the defendant appeared disheveled when he was led into the courtroom."The judge said, 'Is your name Cornell Tyler?' " Lagerwall said. "He said, 'My name is Self Destruction, but you can call me Smitty—well, I mean [expletive].'

"Tyler then quickly reached down the front of his pants and pulled out the baggie but the deputies beside him pounced on him."In that scuffle, he did throw the excrement toward the front of the courtroom," Mateck said. "The judge was not injured, but unfortunately our deputies were . . . adversely affected."After Tyler was removed, the judge finished the court call in a back hallway.

"The courtroom stunk to high heavens," Lagerwall said. Mateck said charges were expected to be filed next week.

Can Binge Drinking Save Social Security?

Now that I have your attention, I am going to reprint a post (with the same name as this post) from the Freakonomics Blog in its entirety:

"A coalition of college presidents has been pushing states to lower the drinking age as a way to discourage problem drinking on campuses. But here’s one unintended consequence of teaching young people responsible drinking habits: it could make Social Security bankrupt faster.

A 2004 study by Frank Sloan and Jan Ostermann at Duke University found that heavy drinkers contribute slightly more to Social Security, through their higher average lifetime earnings, than nondrinkers do. What’s more, since alcohol abusers tend to die sooner than moderate or nondrinkers, they draw less money, over time, from the Social Security trust fund.

Their conclusion: the elimination of heavy drinking (three or more drinks a day) from each successive group of American 25-year-olds would cost the Social Security trust fund $3 billion over the cohort’s lifetime.

According to the authors:

From the vantage point of society as a whole, heavy drinking redistributes wealth from heavy drinkers to others. Thus, if public health programs were to succeed in reducing the rate of heavy drinking, [Social Security’s] future financial status would be even worse than has been projected.

The study drives home the health cost of irresponsible drinking, but with a twist: in this case, binge drinking can have positive externalities.

On another note, one of the puzzling underlying findings in this paper is the relationship between moderate alcohol consumption and increased lifetime earnings. For men and women alike, people who report downing two or fewer drinks a day earn slightly more than teetotalers do, on average. Heavy alcohol use tends to negatively impact earnings, as you might imagine, but not as much as abstinence. Sloan and Ostermann aren’t clear on the mechanics of this relationship, but the science seems solid."

Interesting analysis.

I wonder why they went bankrupt.

I was just reading an interesting piece on the Wall Street Journal Law Blog which speculates that the trustee in Lehman Brothers' historic Chapter 11 bankruptcy filing could could possibly attack the bonuses handed out to Lehman executives over the last year on the ground that they were fraudulent transfers made by an ailing company.

The article reports that Lehman paid about $5.7 billion in executive bonuses last year. The article also states that the bonuses are typically 60% of compensation. After brushing off my high school algebra textbook, I figured that the estimated annual salary in 2007 of Lehman executives was approximately $9.5 billion (I hope that's right). I have absolutely no idea how many "executives" there are at Lehman, but could they even have 500? I have no idea. Reuters states that they had 28,600 total employees worldwide. 500 executives sounds about right. Assuming 500 executives, that means that they each earned approximately $19,000,000 last year!!!!!!!!!!!!!!

That's some major coin. What could they have done to be worth so much money to that company? Probably nothing. You know they just basically took a percentage of everything that came into the company. Maybe if the "executives" hadn't been so greedy, they could have kept drawing more moderate salaries for many years to come. Instead, as soon as they had a bad year, they had to start typing up their resumes.

What would the cops actually do?

I missed this case right when it came out, but I was just leafing through the West's Illinois Decisions paperbacks that come out before the hard volume is published, and I came across the blurb about People v. Harris, 2008 WL 733756.

I will quote the case summary from West in its entirety:

"Compliance, by a passenger in a lawfully stopped vehicle, with a police officer's request for identification was voluntary, notwithstanding that the passenger was not free to terminate the encounter. Thus, the request for identification did not violate the passenger's Fourth Amendment rights. In so holding, the Supreme Court found that the request for identification was facially innocuous, and that a reasonable innocent passenger, even upon realizing that the driver of the car in which he had been riding was about to be arrested, would have felt free to decline to provide his driver's license or other identification."

What would a typical police officer do if you refused to provide identification?

You will find out eventually because I guarantee that the next time that I am the passenger in a car I am going to withhold my ID. I might even print out a copy of this Supreme Court opinion for my glove box, not that the typical officer would give that the time of day.

Stay tuned.

The Jewish Clause

I saw in the Chicago Tribune this morning that a Chicago dentist named Max Feinberg expressed in his will his wish to disinherit any descendant "who married outside the Jewish faith." Following litigation initiated by one of his grandchildren, the Illinois Appellate Court noted that it would be "contrary to public policy" to honor Max Feinberg's wish.

I need some help here. I am not an estate planner. I did take Trusts and Estates about six or seven years ago, but I think I sold that text for pizza money about two days after the final. First of all, this wasn't the public's money. It was Max Feinberg's money. So how can the court overrule his wishes based on public policy considerations. Three judges think they can dictate how this guy can divy up the money that he spent seventy years saving. That's ridiculous. I don't think this has any public policy implications whatsoever. He didn't say "My descendants must marry Jews." He said "You can marry whoever you want, but if you want my money, you must marry a Jew." How are these kids automatically entitled to any of his money??? He built his own fortune. He should be able to do with it as he chooses.

Of course, I haven't read the court's opinion. I'm just giving you my initial reaction after reading this article today. There are probably arguments expressed by the Appellate Court of which I am not smart enough to come up with on my own as I sit here typing this off the top of my head.

I would be thrilled to hear from some estate planners out there. What are your thoughts on this case and its implications for your practice.

Affair with former client's wife costs attorney $1.5 million

From Law.com:

A Mississippi attorney must pay $1.5 million for having an affair with a former client's wife.

Affirming a jury verdict in Rankin County Circuit Court, the Supreme Court of Mississippi found Ronald Henry Pierce liable to his former client, Ernest Allan Cook, who, along with his wife Kathleen Shorkey Cook, had hired Pierce to represent them and their son in a medical malpractice action. The appellate court found Pierce, a solo practitioner, liable for intentional infliction of emotional distress, breach of contract and alienation of affection.

Pierce began having an affair with Kathleen Cook in September 2000 after her husband had moved to California to pursue a film career. Ernest Cook discovered the affair and hired a private investigator. The Cooks terminated Pierce as their attorney in the medical malpractice action in December 2000 and were divorced in June 2002 on the grounds of Kathleen Cook's uncondoned adultery. Ernest Cook then filed a lawsuit against Pierce.

In June 2006, a jury granted Ernest Cook $300,000 for alienation of affection, $200,000 for breach of contract and $1 million for intentional infliction of emotional distress. The Mississippi Supreme Court on Aug. 14 rejected Pierce's argument that the statute of limitations had expired on the alienation and emotional distress claims and his argument that the breach of contract claim was actually a legal malpractice claim requiring an expert witness.

Reached by phone, Pierce said he expected an unfavorable outcome because the Supreme Court had denied his bid to present oral argument on appeal. "I knew I was going to get screwed," he said.

Pierce said that he planned to file a motion to reconsider.

Felony conviction overturned because prosecutor's law license was suspended

The Aurora Beacon Newspaper reports that a felony conviction out of Kendall County has been overturned by the 2nd District because one of the Assistant State's Attorneys who tried the case had had her license temporarily suspended for failing to answer the question on the renewal form asking whether or not she maintained malpractice insurance.

The article states that the defendant's lawyer was simply checking how to spell the prosecutor's name on the ARDC website for purposes of the appellate brief when he discovered that the prosecutor's license was suspended six days before his client's trial. That had to be a good feeling. I bet the brief sure took a different tone after that discovery.

I know the ASA involved in that case. She was actually decent to work with, which I cannot say for the majority of prosecutors that I come across in my practice. She no longer works for Kendall County, but now works in the Kane County State's Attorney's office. Her license was only suspended for ten days. It just so happens that during that period of time she tried a felony case that she won and that the defendant decided to appeal. That was unfortunate for her, but like I said, that must have been a good feeling for the defense lawyer when he first made his discovery.