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December 2005
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Define That Term #19

Yesterday's term was res ipsa loquitur, which is defined as:

(rayz ip-sah loh-quit-her) n. Latin for "the thing speaks for itself," a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened. Examples: a) a load of bricks on the roof of a building being constructed by Highrise Construction Co. falls and injures Paul Pedestrian below, and Highrise is liable for Pedestrian's injury even though no one saw the load fall. b) While under anesthetic, Isabel Patient's nerve in her arm is damaged although it was not part of the surgical procedure, and she is unaware of which of a dozen medical people in the room caused the damage. Under res ipsa loquitur all those connected with the operation are liable for negligence. Lawyers often shorten the doctrine to "res ips," and find it a handy shorthand for a complex doctrine. See also: negligence.

Slickdpdx got it right!   

Today's term is:


Please feel free to guess.  Slickdpdx needs some competition!

That's One Way to Get a Mistrial.

As reported in this article, New York Supreme Court Judge Albert Tomei indicated that he was likely to grant a mistrial after the following occurred:

Just as court officers turned their attention to escorting jurors out of the room, sources said Pearson stabbed his attorney with a plastic shiv "to create a diversion. Hendrix, waving a sharpened shank, attacked Sgt. James Gorra and in the struggle tried to grab his weapon.

That's one way to get a mistrial, but I wouldn't recommend it.  And, I'm pretty sure that defense counsel in this case would wholeheartedly agree.

What Do You Mean I Can't I Call the Accused "Evil"?

People v. Smith, N.Y. Slip Op. 00183 was a virtual circus of improprieties.  The vast majority of the First Department's opinion addressed  the issue of whether the defendant had established good cause for substitution of new assigned counsel.  The Court noted that defense counsel stated the following on the originally-scheduled sentencing date:

(T)he defendant "has indicated that he has filed grievances against me . . . And at this point, since I have every intention of defending myself . . . I feel that I am obligated to bring this up because the advocacy role may very well be breached. And there may be an adversarial role. So, he's asking me to be relieved."

The lower court judge then adjourned the matter without any further inquiry to a later date for a hearing to determine if the defendant was a second felony offender.  On the date of the hearing, the judge did not inquire as to the situation described above by defense counsel and went forward with the hearing.  Following the hearing, the defendant himself suggested that the sentencing should not go forward due to the complaints that he'd lodged against his attorney.

The Court concluded that an inquiry by the lower court

was required so that the court could focus on the nature of the conflict between the defendant and his attorney, and determine whether counsel could still provide the defendant with zealous representation or whether the request for substitution was merely a delaying tactic.

Accordingly, the Court vacated the sentence, ordered that new counsel be appointed and that resentencing occur.

The Court also held that the "lifetime" Order of Protection that was issued was invalid and that a new Order of Protection with an expiration date was required.  That should have been self evident to the lower court judge, but sadly, or perhaps, surprisingly enough, it wasn't.

However, I think that my favorite part of this case was that, despite the fact that the issue had not been preserved for appeal, the Court felt the need to state:

We do not, however, condone the prosecutor's description of the defendant as "evil," because use of that term to describe a defendant in no way helps a jury perform its fact-finding function.

Define That Term #18

Yesterday's term was novation, which is defined as:

n. agreement of parties to a contract to substitute a new contract for the old one. It extinguishes (cancels) the old agreement. A novation is often used when the parties find that payments or performance cannot be made under the terms of the original agreement, or the debtor will be forced to default or go into bankruptcy unless the debt is restructured. While voluntary, a novation is often the only way any funds can be paid. See also: accord and satisfaction.

Slickdpdx's guess was close.  There were also a few creative guesses.

Today's term is:

res ipsa loquitur.

No dictionaries please.  Good luck!

Define That Term #17

Yesterday's term was ultra vires, which is defined as:

(uhl-trah veye-rehz) adj. Latin for "beyond powers," in the law of corporations, referring to acts of a corporation and/or its officers outside the powers and/or authority allowed a corporation by law. Example: Directors of Highfliers, Inc. operate a small bank for its employees and friends, which corporate law does not permit without a bank charter, or sells shares of stock to the public before a permit is issued. See also: corporation.

Today's term is: 


As always, no dictionaries, only educated guesses.

Be Scared. Be Very, Very Scared.

The most recent and most alarming example of this administration's blatant disregard for the constitutional right to privacy is found in this document.  In it, the government seeks to learn more about computer users searching for pornography on the internet. 

Accordingly, Alberto Gonzales, has filed a motion in the United States District Court for the Northern District of California seeking to compel Google (yep, that's right, Google--you use Google, don't you?) to turn over a "multi-stage random sample of one million URLs" from the Google database and a computer file with the "text of each search string entered onto Google's search engine over a one-week period."

Big Brother is watching...very, very closely. 

U.S. Department of Justice Attempts to Justify Domestic Wire Taps

UPDATE:  There's a great summary of this document at the Volokh Conspiracy blog.  Interestingly enough, the "special needs" doctrine that I criticized here ominously pops up as part of the government's alleged justification for domestic spying.

The U.S. Department of Justice has released a document outlining the purported legal basis for the President's domestic spying activities.  It can be found here.

I'm still trying to wade through Gonzales v. Oregon, so I haven't read much of it yet.  But it appears at first glance to suffer from the same 3 Ds (dry, dull and dense) as Gonzales.

Pataki Extends Megan's Law

As reported here, Governor Pataki signed a law yesterday that extends Megan's Law.  The article describes the new law as follows:

Under the legislation, the most violent offenders would have lifetime registration in the Megan's Law database, with level two offenders able to petition to be taken off the list after 30 years. The lowest level offenders would be registered for 20 years, up from 10 years under the initial legislation.

The legislation may be revisited if the federal government makes changes to its national databases in the near future.

Define That Term #16

Yesterday's term was escheat, which is defined as:

n. from old French eschete, which meant "that which falls to one," the forfeit of all property (including bank accounts) to the state treasury if it appears certain that there are no heirs, descendants or named beneficiaries to take the property upon the death of the last known owner.

Today's term is: 

ultra vires.