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Define That Term #148

Wednesday's term was equitable lien, which is defined as:

n. a lien on property imposed by a court in order to achieve fairness, particularly when someone has possession of property which he/she holds for another. See also: constructive trust equity lien.

No one guessed this time.

Today's term is:

mail box rule.

Educated guesses are welcome, but please, no dictionaries.


NY Court of Appeals Considers Allegations of Juror Impropriety

Last week, in People v. Pizarro, 2006 NY Slip Op 06506, the New York Court of Appeals upheld a defendant's murder conviction, despite allegations made by the foreperson of the jury that another  "juror concealed his personal knowledge about the case during jury selection, sought to share outside-the-record information with his fellow jurors during deliberations, and, after the jury foreperson short-circuited and reported his attempted disclosures, lied to the trial court."

The Court of Appeals concluded that it was bound by the Appellate Division's factual conclusions since the conclusions were supported by the record.  The Appellate Division held that based on the following facts, the trial court properly determined that the the whole thing was simply a misunderstanding:

The trial judge conducted a day-long hearing to investigate the foreperson's allegations against the juror, whom the judge interviewed three times. The juror denied under oath possessing non-evidentiary knowledge about the case. The trial judge also questioned every other juror regarding the truth of the allegations. Based on his inquiries, the trial judge concluded that the juror did not have personal knowledge related to the case and had not tried to convey outside-the-record information to other jurors. Moreover, all 12 jurors assured the trial judge that they would decide the case impartially, based on the evidence alone.

While I understand the basis for the Court of Appeal's decision and don't necessarily disagree with it, I find myself once again puzzled by the underlying facts.  It feels to me as if a we haven't really heard the whole story and that a vital piece of information is missing, although I have no idea what it could be.  Any ideas? 

It's Confirmed: Proposed NY Lawyer Advertising Rules Comment Period Extended

The New York Court's website confirms the rumor that the comment period on proposed changes to the New York lawyer advertising rules has been extended to Novmeber 15, 2006.  The new rules will now go into effect on January 15, 2007.   (Hat tip:  Legal Ease blog.)

All my prior posts on the proposed rules can be found here.

Comedic Break

Here's another courtroom transcript.  You gotta love a lawyer who's quick on his feet--all in the name of a good laugh:

By Defendant's Attorney:  Tell me what you were like from age 17 to the present. What have your feelings been about having kids?

By Plaintiff:  I wanted to pursue an education and then meet the perfect person and be married a couple years, save some money, buy a house, and start a family.

Defendant's Attorney:  When did that change?

Plaintiff:  Well --

By Plaintiff's Attorney:  -- or did that change?

By Plaintiff:  -- It didn't.

By Defendant's Attorney:  I think we all realize that as we get older, we're not going to marry the perfect person.

By Plaintiff's AttorneyMy wife did.

Civil Rights Round Up

Here are some civil rights issues of interest from the past week:

  • House Approves Warrantless Wiretap Law:  Yesterday, the House voted to approve a Bill that authorized, under certain conditions, the warrantless wiretapping  of telephone calls and emails between those in the US and those in other countries.  The Bill provides that the president would be authorized to conduct the wiretaps if he: 1) notifies the House and Senate intelligence committees and congressional leaders, 2) believes an attack is imminent and later explains the reason and names the individuals and groups involved, and 3) renews his certification every 90 days.
  • Federal Judge Rules Bush Cannot Continue SurVeillance While Appeal is Pending: "A U.S. judge ruled against the Bush administration's bid to continue its terrorist surveillance while appealing her decision that the program is unlawful. The judge gave the government a week to ask a higher court to let the eavesdropping go forward."

"Platonic" Roommates Out of Luck

In an interesting case handed down last week,  Matter of Erie Ins. Co. v. Williams, 2006 NY Slip Op 06716, the Fourth Department considered the issue of whether the cancellation of an automobile insurance policy as to one insured, Tiffany Luterak,operated to effectively cancel the insurance as to the other insured, Bill Williams. 

Apparently Bill and Tiffany shared the costs of maintaining and insuring their cars.  Erie Insurance  canceled Tiffany's automobile insurance policy and thereafter Bill was involved in an accident with that vehicle.  He then commenced a supplementary uninsured motorist claim against Erie and Erie then sought to stay the arbitration on the grounds that no insurance was in effect at the time of the accident since Bill was "a member of (Tiffany's) household" at the time of the cancellation.

The Fourth Department concluded that Bill and Tiffany did in fact reside together, but as "platonic roommates":

We conclude, instead, that respondent on the date of cancellation "actually resided in the insured['s] household with some degree of permanence and with the intention to remain for an indefinite period of time" (Matter of Biundo v New York Cent. Mut., 14 AD3d 559, 560). The record establishes that, although respondent and Luterek were platonic roommates, they were living as members of a single household and indeed were sharing the costs of maintaining their vehicles and the insurance thereon. We thus conclude that the policy was not in effect at the time of the accident. Under the circumstances, petitioner had no obligation to disclaim liability or to deny coverage (see generally Insurance Law § 3420 [d]; Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188-190; Zappone v Home Ins. Co., 55 NY2d 131, 137-138).

The holding makes perfect sense to me.  It's the alleged facts that I have a problem with.  I smell a rat. 

I'm thinking Bill and Tiffany pulled the wool over the Court's eyes.  It sounds as if Bill and Tiffany, "platonic" roommates, each owned a car, so why didn't they each pay for and insure their own car?  Why bother combining costs, unless one person was paying more than their fair share?  And why would a "platonic" friend do that?  I've had a number of good friends in my life, but none of them ever paid for my car insurance.   Must be I've got the wrong kind of friends.

But, I digress.  Platonic relationship or not, it wouldn't have changed the holding.  Nevertheless, Bill and Tiffany--you're not fooling me.

NY Justice Courts-Part 3

The final segment of the New York Times series of articles on the New York Village and Justice Courts can be found here.  This article focuses on the failed attempts to change a court system that is far from effective:

Although they are key institutions of justice in more than 1,000 small towns and suburbs across New York, trying misdemeanor cases and lawsuits, a vast majority of the justices who run them are not lawyers, and receive only a few days’ legal training. The justices are often elected in low-turnout races, keep few records and operate largely without supervision — leaving a long trail of injustices and mangled rulings.

Yet these justice courts, as they are known, remain essentially as they were when New Yorkers started complaining nearly a century ago...

One way to understand why a much-criticized institution has come to seem so entrenched is to revisit three big battles over the justice courts. In each, the people seeking to change the system tried in a different arena: the Legislature, the voting booths and the higher courts. And each time, their defeat was so stinging that it effectively killed any further discussion there...

In interviews, people who were deeply involved in these episodes — including political deal-making that took place out of public view and was never reported — pointed to a battery of forces that have doomed change: The powerful idea that communities should choose their own destinies, including their own judges. The considerable costs of updating courtrooms and hiring lawyers to preside. The always-popular calls to keep lawyers out of people’s lives. And, not least, the power of the justices, who are often important players in local politics, wired into the same party mechanisms that produce the state’s lawmakers, judges and governors.

The article ends on a somewhat depressing note, leaving the impression that things are not likely to change any time soon.  I wish I could say that I disagreed with that premise, but unfortunately I expect that things will remain as they are for years to come. 

I trust I'm not alone when I say that I think that the people of this state deserve better.

Define That Term #147

Monday's term was order to show cause, which is defined as:

n. a judge's written mandate that a party appear in court on a certain date and give reasons, legal and/or factual, (show cause) why a particular order should not be made. This rather stringent method of making a party appear with proof and legal arguments is applied to cases of possible contempt for failure to pay child support, sanctions for failure to file necessary documents or appear previously, or to persuade the judge he/she should not grant a writ of mandate against a governmental agency. See also: O.S.C.

Damin J. Toell's guess was close enough for me.

Today's term is:

equitable lien.

As always, no dictionaries, please.

Wednesday's NY Legal News Round Up

It's time once again for the round up of interesting New York legal news items from the apst week:

Comedic Break

Here's another courtroom transcript for your viewing pleasure:

Judge: Please identify yourself for the record.

Defendant: Colonel Ebenezer Jackson.

Judge: What does the "Colonel" stand for?

Defendant: Well, it's kinda like the "Honorable" in front of your name. Not a damn thing.