Judge allows defense to see Plaintiff’s social media postings

Well…it is in New York State that a judge allowed the defense, and ordered the Plaintiff, to have the Facebook and MySpace posting given to the defense. Found this on a blog, but it refers to a Westlaw source: http://blog.internetcases.com/2010/09/25/court-privacy-on-social-networking-sites-myspace-facebook-is-wishful-thinking-chicago-internet-attorney-copyright-lawyer/

Note, however, that the authoritive and more comprehensive ruling is here: http://caselaw.findlaw.com/ny-supreme-court/1539217.html

You have to admit that, no matter which side of a personal injury case you usually handle, the court in that New York Case appeared to reason it out, including the review of the relevant Stored Communications Act, 18 U.S.C. ¶ 2701 et seq before requiring the Plaintiff to produce not only her current postings but any that have been removed. The court’s reasoning included the following truism: “Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action (see: Hoening v. Westphal, supra ).”

When a claim is made in a personal injury case, and even more so in a defamation case, it opens a Plaintiff’s life up somewhat. Although New York State law is not controlling in the slightest on the courts in South Carolina, I am sure that a defense lawyer or two will want to try this. After all, the family court lawyers have been saying this for awhile here. Now, at least you have some relevant statutes and law to assist you in seeking out the social media postings of a Plaintiff. Tell me if it works!

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Loose lips lose trials–after the fact

Interestingly enough, there were two cases whose appellate opinions were filed in the last week where an attorney lost his case, and thus his client’s case, due to the lawyer’s comments causing an appellate court to reverse a decision in the trial court. One was in South Carolina and one was in Florida.

South Carolina’s case was a criminal case, indeed a death penalty case of Vasquez v. State of SC: http://www.sccourts.org/opinions/HTMLFiles/SC/26852.htm (Opinion filed on August 9, 2010.) Certainly the Solicitor, like all attorneys, knows that there is a lot of appellate scrutiny on death penalty cases. In the Vasquez case, the Defendant, who was a Muslim, was convicted after being fired from Burger King, returning at closing time, locking two people in the restaurant’s walk-in freezer (from which they later escaped) and killing two other people. Still, the prosecutor in this Horry County, SC case went too far in the death penalty phase by referring to the Muslim Defendant as a “domestic terrorist” and drew a correlation between his indicted conduct and the events of September 11, 2001.” The case was reversed and remanded with the reminder (shall we call it): “While the solicitor should prosecute vigorously, his duty is not to convict a defendant but to see justice done. The solicitor’s closing argument must, of course, be based on this principle. The argument therefore must be carefully tailored so as not to appeal to the personal bias of the juror nor be calculated to arouse his passion or prejudice. State v. Northcutt, 372 S.C. 207, 222, 641 S.E.2d 873, 881 (2007) (quoting State v. Linder, 276 S.C. 304, 312, 278 S.E.2d 335, 339 (1981)).”

So, in case there needs to be a reminder, let me put it this way: Bias, passion and prejudice are not to be the basis of any verdict with this criminal case also being a reminder to all attorneys, whether involved in criminal or civil cases.

In the Florida case filed on August 4, 2010, the Defendant Daniel Gilbert Andrew Chin, appealed the denial of his motion for a new trial from a jury verdict in the sum of $1,360,740 [yep, almost $1.4 MILLION], awarded to the Plaintiff motorcyclist William Roger Caiaffa, for injuries to his right knee, right ankle, right testicle, and right wrist, arising out of a collision between Chin’s automobile and Caiaffa’s motorcycle. The Defendant Chin admitted causing the accident, so the decision was how much, if anything, should be awarded to the Plaintiff, whose attorney had previously had a case reversed in 2008 for the same reasons, “an improper attack on [the defendant] . . . and its defense counsel.” So, it is not like he was a stranger to letting his lips flap a bit too much. I will defer to the case where you can read the egregiousness of his opening statement, closing argument and reply argument. Here is where you can find the decision: http://www.dailybusinessreview.com/images/news_photos/64370/3rd-dca.pdf

Attacks upon opposing counsel apparently are not taken lightly in Florida. For example, in an earlier 2007 decision (unrelated to current counsel in the case I am discussing with you), argument that defense counsel was “‘pulling a fast one,’ ‘hiding something,’ and ‘trying to pull something,’ was tantamount to calling defense counsel liars and accusing them of perpetrating a fraud upon the court and jury,” requiring a new trial. Sanchez v. Nerys, 954 So. 2d 630, 632 (Fla. 3d DCA 2007).

Sounds like a good place to practice law. Too often I hear some argument that defense counsel (me in this example, although I handle Plaintiff’s cases also) is allowed broad use of a subpoena and, if there was something to refute the Plaintiff’s medical claims, I would have produced it. Of course, the problem is that closing argument is an argument on the evidence and reasonable inferences from the evidence admitted at trial, and not an attorney attempting to testify (as I characterize it here) in closing argument.

A 50 year old Florida case also was quoted in the opinion and is worthy of your time and effort to read it thoroughly:

It may well be that any unscrupulous attorney (if there be such) or one
who must choose between suffering the pangs of conscience because
of an infraction of the canons of professional ethics, and suffering the
pangs of hunger, the realization of his family being in want, and the
hounding of creditors may yield to the temptation to overstep the
bounds of propriety where one who by fortuitous circumstances is
faced with no such problem may experience no such temptation.

Juhasz v. Barton, 1 So. 2d 476, 478 (Fla. 1941). And, as the modern day Florida court noted “there is no indication in the many Florida Supreme Court opinions issued in civil cases since that time that its concern is any less today.”

So, as we grow and prosper in the law in South Carolina, we attorneys need to remember a lot of things, not the least of which is set forth here. And, yes, the civility oath kicked in during the last few years. The Utah Bar Association thought to mention our civility oath in a discussion on civility: http://webster.utahbar.org/barjournal/2009/05/enforcing_civility_in_an_uncivilized_world.html

Head to head, let us go to trial. Stoop not into the dirt and mud, nor sling such at others. Let justice rein, not attorneys’ personalities.

NOTE: Here I am on our newest website: http://lawfirm-charleston-sc.com/attorney-profiles/#att_two

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Off the edge “humor” is not defamation of a New York teen

This arose from my posting the following on my Twitter (MaxLaw843) account: “Whether Facebook posts were poor attempts at humor or something else, it was NOT a $6M defamation: http://bit.ly/d17Ix6.” An old high school friend posted back: Well, what is it, if it is not defamation. Abandon for a moment that I am not licensed in NY and know virtually nothing about that state’s law. With that kind of appropriate legal disclaimer….let’s chat about it, rather than my walking down the hallway at my law firm (Grimball & Cabaniss, LLC) and asking our associate who has handled quite a few defamation cases.

What cause of action would it be in South Carolina, assuming our courts would take the same action of dismissing the action if it were to be filed here? A cause of action for nuisance? Nah. And it certainly would not be cyberbullying as it is not really a civil cause of action but instead is a criminal charge.

What the NY court seemed to be saying, in between the lines, is that sometimes people can not be too nice, catty and the whole nine yards….and sometimes we just have to “suck it up” when people make fun of you….or you can fight words with words. (I agree with my friend: It’s a sad thing when people look for such to do that causes embarrassment to someone else.) Defamation has to be a harming of your image, or relationships, etc. so maybe New York did not think that it went that far, at least under NY law. If you have no damages, you have no lawsuit….

Maybe someone else out there has an idea…or has succeeded on a civil cause of action and will come forward and comment on my blog here.

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A quick primer on the offer of Underinsured Motorist’s Coverage in South Carolina

For a quick primer on the offer of Underinsured Motorist’s Coverage in South Carolina, just take a look at this unpublished opinion (and thus with no precedential value) from the S.C. Court of Appeals: Nolan v. Progressive Northern Insurance Company and Progressive Casualty Insurance Company (Memorandum Opinion # 2010-MO-016, filed July 19, 2010), which can be found online at http://www.sccourts.org/opinions/displayUnPubOpinion.cfm?caseNo=2010-MO-016

Sure is short, sweet and to the point kind of reference. Kinda like this blog post, eh?

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GREED: N.J. Law firm for filing involuntary bankruptcy petition against its client!

First off, greed in any one is not good and can lead to their downfall. Next, and most importantly to a lawyer like me, greed in an attorney is not good, and in my opinion can lead to ethical problems. Well, the July 15, 2010 court opinion of the U.S. Bankruptcy Court in New Jersey in the case of IN RE SKYWORKS VENTURES, INC. (found online at
http://www.leagle.com/unsecure/page.htm?shortname=inbco20100715742) proves the point brilliantly.

Essentially the court found that the lawyers knew better than to file the bankruptcy petition, but did so anyway. Thus, it certainly was not a “good faith” filing. Especially when there was a bona fide dispute. The court further noted in this case and as a warning to all that “petitioning creditors should carefully examine the risks undertaken in the filing of an involuntary petition.”

You can read the opinion yourself, and I encourage you to do so. As an aside, I always have said don’t mess with the court….particularly a federal court. Here is proof positive why you should not.

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E-mail purloining in a South Carolina case of Jennings v. Jennings

Basically, Mr. Jennings and his wife split after he admits that he has fallen in love with another woman. Wife’s daughter in law, who previously worked for Mr. Jennings, cracks into (my words, not the court’s) his office Yahoo! account. (For full facts, see the S.C. Court of Appeals case here:http://sccourts.org/opinions/displayOpinion.cfm?caseNo=4711).

Within the case we have a view of how South Carolina’s courts will deal with web-based e-mail and whether or not it falls within the definition of an “electronic communication service,” (ECS) finding that (drum roll please) Yahoo! indeed is one. Had the daughter-in-law just looked on the Husband’s hard drive, there would not have been a violation. Now perhaps you can see how tightly you need to consider, think through, and research your cases in this electronic arena before you file them.

As an aside here for you geeks (like me), a footnote to the Jennings case states as follows:
Hilderman v. Enea TekSci, Inc., 551 F. Supp. 2d 1183, 1204-05 (S.D. Cal. 2008) (holding that emails stored by employee on hard drive of company-issued laptop were not in “electronic storage” as contemplated by the SCA); In re DoubleClick, 154 F. Supp. 2d at 511-13 (holding that computer programs known as “cookies” placed by internet advertising corporation on the hard drives of plaintiffs’ computers were not in “electronic storage”)

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Oral contract or just another crazy (like a fox) law student?

The first year of law school, at least for me and others of my generation going through the University of South Carolina School of Law, involved an in-depth study of contracts and of “consideration,” usually money  exchanged for person goods, like a widget or a car or for real property but there were those pesky oral contracts also.  Looks like a lawyer made what a law student believed was an oral contract which he accepted by performance:  http://www.ajc.com/news/law-student-moves-fast-568319.html See, there has to be an offer, an acceptance and it must be supported by the hairy thing known as consideration.

In South Carolina and elsewhere, “A contract is an obligation which arises from actual agreement of the parties manifested by words, oral or written, or by conduct.” Ralph King Anderson, Jr., South Carolina Requests to Charge-Civil § 19-1 (Contract – Defined).  But the Texas law student who sued for the failure to pay what he contended was a contract was relying upon the premise that an “implied in fact contract is a contract which arises when assent of parties to agreement is manifested by conduct.”   Rolandi v. City of Spartanburg, 294 S.C. 161, 363 S.E.2d 385 (Ct. App. 1987).  Have I lost you yet on this?  (I know that “consideration” was a pure-tee bear when I was a law student in 1981.)

As the sued lawyer put it in the story in the Atlanta Journal-Constitution, “I’m really unconcerned about it,” Mason said last year. “When it’s over, somebody or some group of people out there are going to have to face the consequences of filing such a false, stupid lawsuit.”  The law student and his attorney see it differently, of course.

Do you think this will be like the million dollar cup of coffee spilled by the lady into her own lap in a McDonald’s drive through?  Will this be another example of our litigious society? Will this be an attorney who has to pay the piper?  What do you think?

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