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September 2006

Comedic Break

Here's another funny courtroom transcript.  I think we've all asked a question like this one at least once or twice:

Q: When he went, had you gone and had she, if she wanted to and were able, for the time being excluding all the restraints on her not to go, gone also, would he have brought you, meaning you and she, with him to the station?

MR. BROOKS: Objection. That question should be taken out and shot.


Define That Term #136

Tuesday's term was vacate, which is defined as:

v. 1) for a judge to set aside or annul an order or judgment which he/she finds was improper. 2) to move out of real estate and cease occupancy.

Perry offered the following guess via e-mail:

I'm pretty sure that vacating a (court) decision means cancelling it. But, I assume it is not the same as overturning a (lower court) decision, which I think is the same as reversing one, which overrides the lower court decision with a new one with contrary outcome. So, I'll guess that a court vacates a decision when it finds some defect in a lower court decision, and cancels it, but sends the case back for reconsideration (rather than rendering a new decision itself).

He was pretty close.

Today's term is:

uninsured motorist clause.

Good luck and remember the only rule: no dictionaries.


He Probably Should Have Kept His Mouth Shut

I came across an interesting First Department case yesterday while conducting research for a client: Matter of Caruso v. Wetzel, 2006 NY Slip Op 05895. 

During voir dire for a kidnapping case, a juror, the petitioner in this Article 78 proceeding, decided to speak his mind, no holds barred:

[PETITIONER]: I'm not going to be fair and impartial in this case. I have been held up three times at gunpoint. One time almost identical, sir, to this.

THE COURT: You would judge the case on what happened to you even if you were satisfied he was not guilty, you would vote on what happened to you, right?

[PETITIONER]: I am already looking at him, I think he is a "scumbag."

THE COURT: First of all, that is an insult not only to him, . . . to me, and the other people in the room. What do you do [for] a living?

[PETITIONER]: What does that matter?

As a result of his conduct, the following occurred:

When petitioner failed to respond, the court said, "Put down not served." When petitioner asked, "What do you mean not served?" the court directed him to "[j]ust leave the room." At that point, petitioner left his seat and approached the bench. After twice being ordered by a court officer to step out, petitioner, at the court's direction, was escorted from the courtroom. At 3:30 that afternoon, petitioner returned to the courtroom, at the court's direction, at which time he was ordered to return the next morning to show cause why he should not be held in criminal contempt pursuant to Judiciary Law § 750(A)(1)....

The next day, petitioner appeared, accompanied by counsel...Petitioner himself addressed the court and stated that in "hindsight," he should not have used "that choice of words" and that he had not intended to be disruptive.

The court found petitioner in contempt....(and)imposed a fine of $1000 and issued an order "Punishing Contempt Summarily" pursuant to Judiciary Law § 750(A)(1).

Unfortunately for the petitioner, the First Department agreed with trial court and upheld the finding of contempt and the fine.  Of particular interest to me was the Court's rejection of the petitioner's argument that to uphold the contempt finding would violate public policy since it would discourage potential jurors from speaking honestly and would risk subjecting those who were inarticulate to being found in contempt.  The Court stated:

This is abject nonsense. As the court stated in imposing sentence on petitioner, this proceeding(:) is most definitely not about a juror being candid, open or honest [or a]bout his ability to be fair and impartial. It is about an insulting, demeaning invective spewed at a defendant. It is an affront to our criminal justice system. . . . [T]o allow prospective jurors or anyone else to verbally debase a defendant on trial is in absolute conflict with our cherished constitutional beliefs and the presumption of innocence and the right to a fair trial. (Emphasis added.)

I love the highlighted language, especially since it came from an appellate court.   And, I completely agree with the Court's decision. 

I do, however, feel ever-so-slightly bad for the petitioner.  He clearly had no idea what he was getting himself into when he decided to shoot off his mouth.  I suppose he'll just have to consider a lesson learned--the hard way.


Reminder

Just a reminder to my regular readers that I'm entrenched in a project right now which will end in early September.  I expect to increase my substantive posting at that point. And, there should be new Court of Appeals decisions to review at that point as well.

Thanks for your patience and continued readership!


More on the Proposed Changes to the NY Lawyer Advertising Rules

First, I've added an article from Lawyers USA to my sidebar on the left (under the heading "Press") regarding the proposed changes to the New York Lawyer advertising rules.  If you read very carefully and squint your eyes, you'll note that I was quoted in the article in the fourth paragraph after the sub-heading entitled "Hitting small firms hardest?"  Yep, that's me.  How about that?

Second, last week I attended a forum on the new lawyer advertising rules and the following individuals, all of whom were instrumental in drafting the proposed rules, were on the panel of speakers:

  • Honorable Eugene F. Pigott, Presiding Justice, Supreme Court Supreme Court Appellate Division 4 th Dept
  • A. Vincent Buzard, Esq. NYSBA, Immediate Past President
  • Michael R. Wolford, Esq. NYSBA Task Force on Attorney Advertising
  • Thomas G. Smith, Esq. President, Monroe County Bar Center for Education.

From what I gathered, it sounds like the definition of "advertising" is going to be tweaked a bit based upon the comments that they've received thus far. 

And, in light of concerns that have been raised regarding the proposed 30-day ban on contacting accident victims, they're attempting to get the insurance industry to agree to a similar ban from their end.

I did raise the issue of the effect of the proposed rules on web advertising and plan to submit a comment in the near future in which I'll incorporate by reference the points made in this comment prepared and submitted by Attorney Joshua Stein. 

Since it appears that the Presiding Justices and those on the committee that drafted these rules are giving some serious consideration to comments and criticisms regarding the rules, I would encourage all of you to take the time to submit your comments to the New York State Office of Court Administration.

Should you wish to submit comments regarding the proposed rules, here is the relevant contact information, which can also be found here at the New York State Court System's website:

Michael Colodner, Esq.
Counsel
Office of Court Administration
25 Beaver Street
New York, New York 10004


Wednesday's NY Legal News Round Up

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


Define That Term #135

Thursday's term was three strikes, you're out, which is defined as:

n. recent (beginning 1994) legislation enacted in several states (and proposed in many others, as well as possible federal law) which makes life terms (or extremely long terms without parole) mandatory for criminals who have been convicted of a third felony (as in California) or of three felonies involving violence, rape, use of a deadly weapon or molestation. The impetus for "three strikes, you're out" has come from public outrage over murders, assaults, rapes and child molestations by released ex-convicts with records of repeated violent crimes. Concern has been expressed about the provisions in some of the bills which prohibit plea bargaining of any charged felony down to a misdemeanor, deny any judicial discretion in sentencing and do not distinguish between violent felonies and cases of non-violent crimes which involve small amounts of money.

I received this guess via e-mail from Perry: 

I guess that this refers to (what I think is) a California law that anyone convicted for the third time of a felony, will not receive parole.

He got it right!

Today's term is:

vacate.

Good luck, and no dictionaries please.