Sui Generis--a New York law blog

Hiatus Starts.....Now

I'm off to the sunny Caribbean for the next week or so.  Posting will resume on approximately January 8th. 

In the meantime, enjoy a really funny, not-even-remotely-law-related YouTube video (an SNL short "Lazy Sunday"--it's one of my favorites) and have a great New Year!  See you on the flip side! 

Crimes and Misdemeanors

There's always criminal activity afoot, and you can learn all about it right here:

• North Carolina Bar Files Charges Against Duke ADA Mike Nifong--He's accused of making inflammatory and misleading statements to the media regarding the Duke rape case (The Legal Reader)
• A recently Retired California Judge Is Told She Can Never Return to the Bench--Apparently she was "surly" and downright rude (Quizlaw)
• Mike Tyson Arrested For DUI--Don't forget to check out the booking photo!  (AP article)
• New Orleans Cops Indicted For Post-Katrina Murders--Trigger happy or just doing their job?  You decide.  (TalkLeft)
• Ex-Gossip Editor Convicted of Sex Charge--Yet another guy who thought he was talking to a cute little 13 year old that turned out to be a 50-year-old cop with a beer belly and a 5 o'clock shadow (Yahoo)
• Cindy Sheehan Arrested at Bush Ranch Yesterday--There's a mug shot, but it's not as entertaining as Tyson's (The Smoking Gun)

Define That Term #176

Tuesday's term was output contract, which is defined as:

n. an agreement in which a producer agrees to sell its entire production to the buyer, who in turn agrees to purchase the entire output, whatever that is. Example: an almond grower has a "home" for his output, and the packer of nuts is happy to have a sure-fire supply, even though it may have to store away a glut.

No one guessed.

Today's term is:

constructive eviction.

As always, no dictionaries, please.

Tagged. It's a first.

I've been tagged by Jim Milles.  This is a first for me, but I guess I'll play.  Here are 5 little known things about me (and I'll follow Jim's cue and include a false one):

1.  I attended my first year of college at Case Western Reserve University in Ohio, and then transferred to the University of Rochester.

2.  I've never broken a bone.  My worst non-surgical injury thus far was a sprained pinkie finger.

3.  My mother dragged me kicking and screaming to my first concert when I was 12--James Taylor.  If only I could have appreciated it as I would now!

4.   I love all sorts of outdoor activities.

5.   I secretly enjoy driving our minivan. 

I tag Richard, Happy Feminist, Legal Mystenigmary, Slickdpdx, and Anthony.

[BALANCE]--Are White Men the Best Lawyers?

The premise underlying this post from Overlawyered seems to contend that they are.  In it, Ted Frank expresses his disagreement with the decision of some large law firm clients (such as Wal-Mart) to conduct business only with law firms holding good diversity records, as reported in this Law.com article.  At the end of the post, he states:

Stories like this put the lie to any claim that African-American participation in big law firms is hindered by racism; if anything, law firms are forced by this socially-accepted racism to compete against one another to recruit and retain the few African-American attorneys out there, because clients apparently value the sneetches with the stars on their bellies more than sneetches who are merely the best lawyers, and shareholders tolerate this dissipation of value.  (Emphasis added).

Now, I'm a big fan of Overlawyered and greatly appreciate the perspective provided by that blog.  But, I respectfully disagree with the contention that those currently at the top of law firms--the white male partners--are necessarily the best lawyers.

To agree with that premise, one must accept the idea that law firms are not shaped by institutional racism and sexism.  One must accept the idea that people make partner simply based upon their skills as an attorney, rather than as a result of who they know and how much money they bring in as a result of their contacts.  One must accept that idea that partners in law firms are not, at the very least, subconsciously influenced by their socialization in a culture that is subversively racist and sexist.   One must accept the idea that preconceived notions about the role of women or minorities don't exist.  One must accept that clients, judges, and other lawyers do not presume the incompetence of an attorney--a presumption that can be overcome, but it's an uphill battle--simply by virtue of their race or gender and that those very same clients, judges and lawyers presume the competence of white male attorneys until that competence is disproved.

One must accept the idea that legal employers across the board don't penalize women for taking "extended" leaves of absence--a.k.a. "maternity leave"-- during their "peak years" as an associate.  One must accept that idea that women are not penalized for leaving work early due to a childcare emergency while men are not penalized for leaving work early for a golf game.

I, for one, don't accept those notions and thus respectfully disagree with the premise of Mr. Frank's post.  I do agree that many white male partners are excellent lawyers.  However, I think that there are many excellent women and minority attorneys out there who simply got tired of swimming upstream.  Who got tired of having to constantly disprove the presumption that they were incompetent or more competent than their less experienced white male colleagues.  Who got tired of having to repeatedly correct secretaries and lawyers who assumed that they were either a paralegal or secretary, but certainly not a lawyer.  Who got tired of hearing the same old generalizations--the jail is no place for women attorneys--[women or minority] lawyers are too timid, too assertive, too quiet, too brassy--women write better than men--white people write better than black people--white men are better lawyers.  Who got tired, so tired, and simply dropped out of the rat race toward partnership. 

This article, which discusses a recent study regarding the high attrition rate of black lawyers in law firms, tends to support my conclusion, as do any number of recent studies regarding the low percentage of women associates who make partner.

That being said, I can see where Mr. Frank is coming from and certainly respect his opinion and his perspective.  And, I realize that one's take on this issue has an awful lot to do with one's perspective.  But, from where I sit, the decision of those big law firm clients to support diverse law firms makes sense and does no harm.  And, it  may actually do a heck of a lot of good.  But that's just my perspective.

The Wall Street Journal blog also has a post with a lively comments section regarding Ted Frank's post on this issue.

Pataki Appoints 3 Judges to Appellate Division, 4th Department

As reported in Buffalo Business First, Governor Pataki designated three Western New York Justices to fill the vacancies in the Fourth Department:  Eugene Fahey, Robert Lunn, and Erin Peradotto (hat tip:  Outside Counsel).

From the article:

Fahey, has been a state Supreme Court justice since 1997. He was previously a Buffalo City Court justice from 1995 to 1997 and a former Buffalo councilman and mayoral candidate.

Lunn is a former Monroe County assistant district attorney and Town of Penfield Town Justice. He has been a state Supreme Court Justice in the Seventh Judicial District since 1995. In August 2005, he was tapped to serve on the Appellate Division, Second Division.

Peradotto has served as a state Supreme Court Justice in the Eighth Judicial District since 2004. Peradotto was an assistant attorney general for the state Attorney General's Office and has an extensive private practice, focusing on personal injury litigation.

Pro Se Or Not Pro Se, That is the Question

In People v Gillian, 2006 NY Slip Op 09662, the defendant appealed his conviction after jury trial on the grounds that he was denied his Sixth Amendment Right to counsel as a result of the court's refusal to allow him to proceed pro se.  The New York Court of Appeals held that his Sixth Amendment rights were not violated since his request to represent himself was not "clear and unequivocal".

The facts are described in the majority opinion:

On April 13, 2004, defendant once again appeared with his assigned counsel for a pretrial hearing and advised the court that he wanted to proceed pro se because assigned counsel had "done nothing" for him and had failed to make certain motions. County Court denied that application as well because it was "not convinced" that defendant would be able to represent himself. In response to that ruling, defendant expressed his distrust of assigned counsel, stating "you can't allow a man who is going to sell me out to represent me."

Two days later, defendant once again moved in writing for reassignment of counsel or, in the alternative, the opportunity to proceed pro se, citing assigned counsel's "incompetence" and purported retaliatory conduct against defendant for requesting new counsel.

The Court began its legal analysis by setting forth the applicable law in cases where a defendant seeks to proceed pro se:

We have long recognized that a defendant "may insist on foregoing the benefits associated with the right to counsel and proceeding on a pro se basis," but have also cautioned that waiver of the "fundamental right to counsel requires that a trial court must be satisfied that a defendant's waiver is unequivocal, voluntary and intelligent".

The Court then concluded that in this case, the right to counsel was not violated since the defendant's request to proceed pro se was made in the alternative--he sought to either be assigned new counsel or to proceed pro se if that request was denied:

(D)efendant's initial requests to proceed pro se were made in the alternative; he sought to represent himself only because County Court refused to replace the first assigned counsel who had displeased him. After County Court appointed a second attorney, defendant did not ask to proceed pro se, but merely objected to the appointment because of a perceived conflict of interest...When County Court announced the appointment of a third attorney, defendant simply asked if his third assigned counsel would be present at the next calendar call. Even if it could be argued that defendant did not equivocate at the outset of the proceedings, any error was cured when the court assigned defendant's third counsel.

Judge Smith disagreed with the majority's conclusion that the defendant's request to proceed pro se was not unequivocal and stated that:

I am unable to join the majority opinion, because I see no equivocation in defendant's request to proceed pro se. It is true that his request was made in the alternative; he wanted to act as his own lawyer only if his request for a new lawyer was denied, as it was. But a request made in the alternative can still be unequivocal...I would vote to reverse defendant's conviction, but for the fact that, after his request was denied, a conflict of interest led to the replacement of his lawyer by a new one — the result he had preferred all along...If, having obtained the remedy he originally preferred, defendant still wanted to represent himself, he should have said so.

I'm inclined to agree with Judge Smith--the request to proceed pro se was unequivocal.  His request, as described by the majority, seemed quite clear to me. 

I'm on the fence as to whether a reversal was warranted, however.  I can see how a defendant might not feel inclined to speak up regarding his intention to represent himself after being repeatedly ignored by a judge.  I'd have to review the record prior to making up my mind on that aspect of the decision.

Comedic Break

In a rather entertaining case out of California, a 61 year old man named Oreste Lodi brought an action against himself alleging that he tried to "control his estate" for 61 years.   Although it unfortunately appears that Mr. Lodi may very well suffer from some sort of mental condition, the lawsuit nevertheless sets the stage for an amusing decision entitled Lodi v. Lodi, 219 Cal. Rptr. 116 (Cal. App. 3 Dist 1985). 

Here are some excerpts for your reading pleasure:

This case started when plaintiff Oreste Lodi sued himself in the Shasta County Superior Court.

In a complaint styled "Action to Quiet Title Equity," plaintiff named himself, under the title "Oreste Lodi, Beneficiary," as defendant. The pleading alleges that defendant Lodi is the beneficiary of a charitable trust, the estate of which would revert to plaintiff Lodi, as "Reversioner," upon notice...Plaintiff requested an order that he is absolutely entitled to possession of the estate, and terminating all claims against the estate by any and all persons "claiming" under defendant.

The complaint was duly served by plaintiff Lodi, as "Reversioner," upon himself as defendant/beneficiary. When defendant/beneficiary Lodi failed to answer, plaintiff/reversioner Lodi had a clerk's default entered and thereafter requested entry of a default judgment. At the hearing on the entry of a default judgment, the superior court denied the request to enter judgment and dismissed the complaint.

In this court, appellant and respondent are the same person.

Each party has filed a brief...

In the circumstances, this result cannot be unfair to Mr. Lodi. Although it is true that, as plaintiff and appellant, he loses, it is equally true that, as defendant and respondent, he wins! It is hard to imagine a more even handed application of justice. Truly, it would appear that Oreste Lodi is that rare litigant who is assured of both victory and defeat regardless of which side triumphs.

We have considered whether respondent/defendant/beneficiary should be awarded his costs of suit on appeal, which he could thereafter recover from himself. However, we believe the equities are better served by requiring each party to bear his own costs on appeal.

The judgment (order) is affirmed.  Each party shall bear his own costs.

Wednesday's NY Legal News Round Up

It's Wednesday already and time for the New York legal news round up.  Here are some interesting news headlines from the past week:

• Lawyer Who Was Sued May Pursue Malicious Prosecution Claim
• Insurer Can Rescind Convicted Lawyer's Malpractice Coverage
• Ex-Judges Back Man Who Says U.S. Sent Him To Be Tortured
• Cop killer's gangsta rap lyrics used against him in N.Y. court
• Safe Harbor Suit Proceeds Against Hotel Over Reveler's Mishap

The NY Legal Blog Round Up

It's time for the (belated) weekly New York blawg round up.  Here are some interesting posts from my fellow New York legal bloggers:

A Buffalo Lawyer:

• Non-compete covenants & deferred compensation

Indignant Indigent:

• CA: statement made by assault victim in response to officer in "emergency" setting is not "testimonial" hearsay
• AD4: restitution must be part of plea agreement

It's No-Fault of NY:

• Fogel: Out

New York Personal Injury Law Blog:

• New York Judge Rejects Pseudonyms In Sex Assault Case

ReformNY:

• Urban Justice Center v. Pataki

Second Opinions:

• Moot.
• Appeal Dismissed.