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December 2005
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February 2006

Emergency Doctrine Held Inapplicable

In Deitz v. Huibregtse, the Second Department considered the issue of whether the lower court properly included the "Emergency Doctrine" in the jury charge.  In Deitz, the injured plaintiffs attempted to cross a two-lane highway when they were struck by the defendant's car. 

The Court described the roadway as follows:

On the date in question the weather was clear. Route 22 at the accident location is a straight two-lane road one lane for northbound traffic and the other for southbound traffic. Each lane has a shoulder and no sidewalks. The accident occurred some distance south of the commercial area of Amenia. There is no dispute that the posted speed limit in that area is 35 miles per hour.

Route 22 just north of the accident site has a posted yellow sign advising drivers to exercise caution for pedestrians. Immediately south of that sign there is a rise or hill.

The Court set forth the relevant law as follows: 1) V & T s. 1146 requires that motorists to exercise due care to avoid hitting pedestrians 2) the Pattern Jury Instructions provides that a motorist is obligated to be on the lookout for pedestrians, to see what should have been seen and to exercise reasonable care to avoid hitting a pedestrian 3) that it is not negligence per se simply because a pedestrian chooses to cross a road at a site other than a cross road, nor is a pedestrian prohibited from doing so and 4) a pedestrian only cedes the right of way to a motorist when entering a roadway with the knowledge that a vehicle is in sight.

Finally, the Court concluded that:

An emergency charge is only proper when, viewing the evidence in the light most favorable to the party requesting it, there is a reasonable view of the evidence that the defendant's conduct was the product of a sudden, unforeseeable occurrence not of the defendant's own making (see Caristo v Sanzone, 96 NY2d 172). Where, as here, there is a sign warning of pedestrians in the area and the elevation of the roadway obscures the driver's view of what lies ahead, a greater degree of caution was required. Moreover, under the facts of this case, it was not unforeseeable that pedestrians would attempt to cross the roadway.

I'm in complete agreement with the Second Department.  Given the facts of this case, I'm having a hard time envisioning the lower court's rationale for including the "Emergency Doctrine" in the jury charge.  Although the appearance of the plaintiffs in the roadway was most likely "sudden", as the Second Department concluded, it was by no means unforeseeable, especially in light of the signs posted warning motorists of the possibility of pedestrians.

Something else puzzled me about this case as well. If you read the opinion, you'll notice that at trial, the distance between the crest of the hill and the site of the accident was never clearly established.  The Defendant estimated it was approximately 50 feet, whereas the plaintiffs estimated it was nearly 300 feet.  That's a big difference, and as I read this opinion, I wondered why neither party provided more conclusive proof of that distance.  In my mind, it's a pivotal issue and one worthy of the extra effort required to establish it more definitively.


Creative Photo Arrays

Check out this post  from Indignant Indigent for a very humorous take on the Third Department's decision in People v. Colon.  In this case, the Court considered whether a photo array was unduly suggestive, where the police placed the defendant's photo alongside five other photos of men whose facial hair appeared to be "drawn in."  Surprisingly, the Court concluded that the photo array was not unduly suggestive.   

My favorite part of Eric's post is this line:

No word yet on whether budding police Rembrandts can legally pencil in black eyes, devil horns or cheek scars.

Eric also constructed a very funny sample photo array.  Go on over and take a look.


How to Avoid Legal Malpractice

The ABA recently published an article for solo practitioners and small firms regarding advice for avoiding legal malpractice claims (hat tip: NY Attorney Malpractice Blog).

According to the article, small firms and solo practitioners are most likely to face a malpractice claim:

Solos and small-firm attorneys find themselves particularly vulnerable to charges of malpractice. According to the American Bar Association, most malpractice suits are filed against lawyers in firms with one to five attorneys. Without the information technology departments, big administrative budgets and large numbers of support personnel that large law firms have at their disposal, solos and small firms must be creative and proactive when it comes to anticipating and preventing malpractice suits.

The article then outlines tips for avoiding malpractice claims and provides advice in the event that you are sued. 

All in all, a good read.  Take a few minutes and read it--you won't regret it.


The Winds of Change

If you haven't already done so, please respond to this poll.

And now, on to the topic of this post.  For those of you who are plaintiff's personal injury attorneys, the issues discussed in Byrne v. Leblond may be of interest.  At issue was the division of legal fees between incoming and outgoing attorneys.  The plaintiffs had signed standard 1/3 contingency contracts with each firm.

The plaintiffs, in a decision that would later turn out to work in their favor, decided to change attorneys after the lawsuit had been commenced.  The case eventually settled for $200,000, which was $85,000 more than the the settlement amount negotiated by the plaintiffs' first attorneys.

After the case settled, the law firms became involved in a fee dispute.  The Second Department noted that as to the former client, a discharged attorney is entitled to recover fees in quantum meruit for the reasonable value of services rendered if not discharged for cause. But if the outgoing firm is discharged for cause, it is entitled to recover nothing.

The Court then turned to the issue of the monetary dispute between the law firms and stated that:

But when the dispute is between attorneys, as here, the rules are somewhat different. The discharged attorney may elect to receive compensation immediately based on quantum meruit or on a contingent percentage fee based on his or her proportionate share of the work performed on the whole case.

The Court noted that if there is a dispute regarding whether the outgoing attorney was discharged with cause, then a hearing is required on that issue. 

Finally, the Court noted that the appropriate standard to apply when determining the amount of the contingency fee for the discharged firm is to take into account "the proportionate share of the work performed by the (first) firm on the whole case taking into consideration the relative contributions of the lawyers thereto."

Good stuff to know should you ever find yourself in a similar situation.


Define That Term #25

NOTE: Please vote in this poll, if you haven't already done so.  I'm not exactly getting the huge response that I'd hoped for, but it's still early.  I'd really like to get a handle on what my regulars would like to read about, so if you visit here a few times a week, please take a minute to respond to the poll.  I would greatly appreciate it!  Thanks so much.

And, moving on to the topic of this post, Saturday's term was seriatim, which is defined as:

(sear-ee-ah-tim) prep. Latin for "one after another" as in a series. Thus, issues or facts are discussed seriatim (or "ad seriatim"), meaning one by one in order. See also: ad seriatim.

Slickdpdx's guess was pretty close.

Today's term is:

defeasance.


New Poll

Now that my blog has been around for a few months and has a good sized readership, I'd like to try to determine why you, my faithful readers, read my blog, so I can try to post more of whatever it is that you like about Sui Generis.  To that end, I was hoping that you would all take a few seconds to respond to an anonymous poll.  You can choose as many options as apply.  In other words, you are not limited to just one choice.

And after you've taken the poll, I'd really appreciate it if you might consider taking the time to e-mail my blog's URL to any friends or colleagues that you think might be interested in my blog.  It'd be nice to increase my readership even more.

PLEASE NOTE:  This is a new poll.  I tried to tweak the old poll and accidentally erased a number of replies, so I deleted it.  If you voted in the old poll, please, please vote again.  I apologise for the inconvenience!

What types of posts interest you the most?
Legal definitions
US Supreme Court issues and case summaries
NY Civil procedure cases and updates
Labor s. 240/1 case summaries
Insurance defense issues
Civil rights issues
Criminal law issues and case summaries
Personal injury case summaries
Federal procedure updates
Free polls from Pollhost.com

Define That Term #24

Yesterday's term was negative pregnant, which is defined as:

n. a denial of an allegation in which a person actually admits more than he/she denies by denying only a part of the alleged fact. Example: Plaintiff alleges Defendant "misused more than a hundred thousand dollars placed in his trust in 1994." Defendant denies the amount was more than a hundred thousand, and denies it was given to him in 1994. Thus, he did not deny the misuse, just the amount and the date.

Who knew?  Certainly not me.

Today's term is:

seriatim.

No dictionaries allowed, as always.


New Documents Regarding Domestic Spying

Two new items of interest were made available today relating to the Domestic Spying issue. 

The first is a long press release from the Justice Department designed to separate "myths" from "reality" (hat tip: Talk Left).

The second is a letter sent by Democratic Senate Judiciary Committee members which sets forth 6 questions for US Attorney General Alberto Gonzales to answer prior to the February 6th hearing regarding the issue of the NSA's surveillance authority.  The request includes all documents and correspondence between the Bush administration and Congress between September 11 through September 14, 2001 regarding the authorization for the use of military force.


Big Brother is Watching

On an almost daily basis, I come across articles similar to those in my two prior posts which bring to mind George Orwell's novel 1984.   I was reminded of this today when I stumbled upon an article written in 2002 entitled Learning to Channel Big Brother-George W. Bush Channels George Orwell.

There are a number of disturbing parallels set forth in this article that I found to be extremely relevant in 2006 including:    

PERMANENT WAR    

In "1984," the state remained perpetually at war against a vague and ever- changing enemy. The war took place largely in the abstract, but it served as a convenient vehicle to fuel hatred, nurture fear and justify the regime's autocratic practices.    

Bush's war against terrorism has become almost as amorphous. Although we are told the president's resolve is steady and the mission clear, we seem to know less and less about the enemy we are fighting. What began as a war against Osama bin Laden and al Qaeda quickly morphed into a war against Afghanistan, followed by dire warnings about an "Axis of Evil," the targeting of terrorists in some 50 to 60 countries, and now the beginnings of a major campaign against Iraq. Exactly what will constitute success in this war remains unclear, but the one thing the Bush administration has made certain is that the war will continue "indefinitely."    

MINISTRY OF TRUTH    

Serving as the propaganda arm of the ruling party in "1984," the Ministry of Truth not only spread lies to suit its strategic goals, but constantly rewrote and falsified history.

It is a practice that has become increasingly commonplace in the Bush White House, where presidential transcripts are routinely sanitized to remove the president's gaffes, accounts of intelligence warnings prior to Sept. 11 get spottier with each retelling, and the facts surrounding Bush's past financial dealings are subject to continual revision.    

BIG BROTHER IS WATCHING    

The ever-watchful eye of Big Brother kept constant tabs on the citizens of Orwell's totalitarian state, using two-way telescreens to monitor people's every move while simultaneously broadcasting party propaganda.    

While that technology may not have arrived yet, public video surveillance has become all the rage in law enforcement, with cameras being deployed everywhere from sporting events to public beaches.    

And thanks to the hastily passed USA Patriot Act, the Justice Department has sweeping new powers to monitor phone conversations, Internet usage, business transactions and library reading records. Best of all, law enforcement need not be burdened any longer with such inconveniences as probable cause.    

THOUGHT POLICE    

Charged with eradicating dissent and ferreting out resistance, the ever- present Thought Police described in "1984" carefully monitored all unorthodox or potentially subversive thoughts.

The Bush administration is not prosecuting thought crime yet, but members have been quick to question the patriotism of anyone who dares criticize their handling of the war on terrorism or homeland defense. Take, for example, the way Attorney General John Ashcroft answered critics of his anti-terrorism measures, saying that opponents of the administration "only aid terrorists" and "give ammunition to America's enemies. "    

Even more ominous was the stern warning White House Press Secretary Ari Fleischer sent to Americans after Bill Maher, host of the now defunct "Politically Incorrect," called past U.S. military actions "cowardly." Said Fleischer, "There are reminders to all Americans that they need to watch what they say, watch what they do, and this is not a time for remarks like that; there never is."    

Because we are a nation at war -- as we are constantly reminded -- most Americans say they are willing to sacrifice many of our freedoms in return for the promise of greater security. We have been asked to put our blind faith in government and most of us have done so with patriotic fervor. But when the government abuses that trust and begins to stamp out the freedom of dissent that is the hallmark of a democratic society, can there be any turning back?

I find it so disheartening that this article, which was written in 2002, foreshadowed much of what has been reported in recent months, including domestic spying.   Every time I read an article detailing yet another instance of our liberties being washed away in our endless quest for safety from the "terrorists", I feel an ominous sense of foreboding.   Our country has reached a crossroads, and I'm not sure that I like the direction that it seems to have chosen.