Previous month:
November 2007
Next month:
January 2008

Define That Term #262

DictionarySunday's term was fictitious defendants, which is defined as:

n. when a party suing (plaintiff) is not sure if he/she knows if there are unknown persons involved in the incident or the business being sued, there are named fictitious persons, usually designated Doe I, Doe II, and so forth, or "Green and Red Company," with an allegation in the complaint that if and when the true names are discovered they will be inserted in the complaint by amendment. Naming fictitious defendants stops the statute of limitations (the time in which a party has to file a lawsuit) from running out even though the true name is not yet known. Sometimes during the investigation or discovery (taking depositions or asking written questions under oath) new information about a potential defendant is found and the real name substituted. Then that person is served with a summons and complaint. If no substitution of a real name for a Doe has been made by the time of trial, usually the fictitious defendants are then dismissed from the case since they never existed in the first place, and the case continues against the named defendants. Fictitious defendants are not permitted in federal cases.

No one guessed this time around.

Today's term is:


As always, no dictionaries, please.

The New York Legal News Round Up

Latest_news It's already time for the round up of interesting New York law-related headlines from the past week:

I'll Need to See Your Papers, Ma'am.

Drlogo11 This week's Legal Currents column, which is published in The Daily Record, is entitled "I'll need to see your papers,ma'am."  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.


I'll Need to See Your Papers, Ma'am

Once the exact identity or some demographics or other characteristics of the person have been determined, the person tracking unit relies on this information to track the person as the person moves through the roaming areas. The person tracking unit may assign a tracking number to each identified person and store the tracking number in association with the collection of RFID tagged product information.” — IBM U.S. Patent Application No. 20020165758; Identification and Tracking of Persons Using RFID-Tagged Items

In May 2005, as part of the Iraq War/Tsunami relief appropriations bill, Congress passed the Real ID Act.

This Act, scheduled to go into effect in May 2008, will require anyone living or working in the United States to have a federally approved identification card in order to open a bank account, travel on an airplane, collect Social Security payments or take advantage of virtually any government service.

It also is expected that all driver’s licenses will have to be re-issued by each state to meet federal standards set by Homeland Security.

The goal of the Act is to create a 50-state, interlinked database making the information in each person’s file available to all states and the federal government. As explained at the Department of Homeland Security’s Web site (www.dhs. gov/xprevprot/laws/gc_1172767635686.shtm): “DHS is proposing minimum standards that will appear on the face of the card. The proposed regulation would require each of the following on the face of REAL IDs; space available for 39 characters for full legal name; address of principal residence; digital photograph; gender; date of birth; signature, document number; and machine readable technology.”

Machine-readable technology options available to the states include Orwellian technology such as storing fingerprints or retinal scans into government-owned computer databases or using identification cards with embedded RFID chips.

RFID chips are a form of embedded technology that can be detected from up to 25 feet away. They can be used to pinpoint the location of pedestrians and individuals in vehicles traveling up to 55 miles per hour.

In late October, Gov. Eliot Spitzer signed a Memorandum of Agreement with Homeland Security Secretary Michael Chertoff that outlines New York’s plan to become one of the first states to be fully compliant with the Real ID Act. Reports surfaced in mid-November stating that Spitzer appears to be backing away from this commitment, however.

I certainly hope so. Our privacy rights are being chiseled away on a daily basis across the country as the government continually seeks to obtain increasing amounts of information while offering less justification for the intrusion. It’s a slippery slope, and it seems we are barreling down the mountain at a high rate of speed while the brake lines on our collective vehicle seemingly have been cut.

Every time I learn of yet another instance of our liberties being washed away in our endless quest for safety from the nebulous concept of “terrorists,” I feel an ominous sense of foreboding. Our country has reached a crossroads and I, for one, am not at all comfortable with the direction it seems to have chosen.
And, now, a video explaining how trackable we all are as a aresult of the devices, such as RFID chips, that are being built into new technologies:

The New York Blawg Round Up

Blawgs It's Monday and time for the weekly round up of interesting posts from my fellow New York legal bloggers--coming at you from my brand new iMac.  I'm sure you can tell the difference in the quality of my posts, right?

But, I digress.  Without further ado, the round up:

Judicial Reports:

New York Civil Law:

New York Legal Update:

New York Personal Injury Law Blog:

Second Circuit Sentencing Blog:

Simple Justice:

Wait a Second!:

Define That Term #261

Dictionary_2 Thursday's term was writ of audita querela, which is defined in US v. Richter, Docket No. 06-1930-cr, as:

The writ has been abolished with respect to civil cases, see Fed. R. Civ. P. 24 60(b), but it remains available in limited circumstances with respect to criminal convictions. Specifically, it “is probably available where there is a legal, as contrasted with an equitable, objection to a conviction that has arisen subsequent to the conviction and that is not redressable pursuant to another post-conviction remedy"...We have previously indicated that a writ of audita querela “might be deemed available if [its] existence were necessary to avoid serious questions as to the constitutional validity of both 6 § 2255 and § 2244.”

Rewinn offered a good guess, but didn't quite get it.

Today's term is:

Fictitious defendants.

I expect that a few of you might have some creative definitions for this particular term.  And, as always, no dictionaries, please.

Potential Violation of Doctor/Patient Confidentiality Not Subject to Suppression

Gavel2 So said the New York State Court of Appeals in People v Greene, 2007 NY Slip Op 09066.

In Greene, a detective investigating a homicide that occurred in 2001 learned that the assailant had been slashed by a knife during the altercation that lead up to the murder and asked an administrator at a nearby hospital if anyone had been treated on the date of the murder for a " the face."  The administrator answered in the affirmative and provided the name and address of the person who later became known as "the defendant."

The Court held that it was unnecessary to reach the issue of determining whether a violation of the physician/patient privilege set forth in CPLR 4504 was violated when deciding whether the release of that information was subject to suppression:

The physician-patient privilege is based on statute, not the State or Federal Constitution (Klein, 221 NY at 453). Our decisions make clear that a violation of a statute does not, without more, justify suppressing the evidence to which that violation leads (People v Patterson, 78 NY2d 711, 716-717 [1991])...The physician-patient privilege...does not serve primarily to protect individuals against government conduct; it regulates a private relationship. The primary obligation to comply with CPLR 4504 is the doctor's — or, in this case, the hospital's. To suppress evidence resulting from a violation of Section 4504 would be to punish the State for a doctor's or hospital's misconduct — a punishment unlikely to deter doctors and hospitals, who have little interest in whether criminal prosecutions succeed or not.

This analysis makes sense under the law as it existed in 2001, before HIPAA was amended in 2003 to include clauses making the release of confidential medical information subject to civil and criminal penalties.  And, perhaps the Greene analysis is applicable even now under current HIPAA laws, since it is the physician/health care provider who is subject to HIPAA's mandates, not the police.

My guess is that this scenario is unlikely to occur post-2003 since health care workers are unwilling to subject themselves to criminal and/or civil liability for a HIPAA violation of this sort.

What do you think?

Websites of Interest to the Adoption Law Practitioner

CheckmarkVia Harris Beach, PLLC comes the following useful article, "Internet resources for the adoption law practitioner," writtten by Cyndi A Trembley, which was originally published in the Daily Record.

An excerpt follows and the full article can be found here:

Practitioners will find the websites and resources presented below useful in their research of adoption laws...

The NYS Office of Children & Family Services ( offers information, including the Adoption Album, publications, tax information, what to expect from an adoption attorney and forms. The Adoption Album has photos of children who have been ‘freed’ for adoption. Prospective parents can begin the process of adopting a child using this site...

The New York based Center for Adoption Policy ( provides “research, analysis, advice and education to practitioners and the public” relating to “current legislation and practices” surrounding in-country and international adoptions...

The legal internet guide Justia ( provides links to relevant legal articles, web resources, laws and news. There are a number of blogs on the Internet dedicated to family law issues including Family Law Prof Blog (

Two other web sites that appear to have useful information are and that have links to adoption laws by state.

Define That Term #260

Dictionary_2 Sunday's term was hotchpot, which is defined as:

n. the putting together, blending or mixing of various properties in order to achieve equal division among beneficiaries or heirs. There may be cash, securities, personal belongings, and even real estate which are part of the residue of an estate to be given to "my children, share and share alike." To make such distribution possible, all of the items are put in the hotchpot and then divided.

Who would have thought that was a "legal" term?  Not I.  And, apparently neither did anyone else, since no one guessed this time around.

Today's term was brought to my attention by Sandy Hausler of the Second Opinions blog:

writ of audita querela.

As always, educated guesses are welcome, but dictionaries are not.

AG Files Appellate Brief in Lawyer Advertising Lawsuit

Attorney_ads Via the ABA Journal's blog I learned that the New York Attorney General has filed  an appellate brief in New York lawyer advertising lawsuit. 

As I'd reported earlier, the AG's office announced its intention to appeal the NDNY's decision in the lawyer advertising lawsuit wherein Judge Scullin granted an injunction declaring some provisions of the New York lawyer advertising rules unenforceable.

A copy of the AG's brief can be found here.  I'll provide further commentary once I've had a chance to review it.

Much thanks goes out to Greg Beck of the Consumer Law & Policy Blog for keeping me up to date.

The New York Legal News Round Up

Latest_news It's time for the middle-of-the-week round up of interesting New York legal headlines: