Moore Trademarks, an online trademark and copyright registration, protection and monitoring service, has just been launched.

The site can be found here.

This is an interesting post, with an interesting series of follow-up questions. Apparently, multi-national law firm Morrison & Foerester missed a filing deadline for attorneys fees by one minute

The ruling raises other issues. Why didn’t the lawyers file the motion electronically using that federal district court’s electronic filing system instead of having a courier deliver it to the clerk’s office in rush hour traffic on the last day for timely filing? And why doesn’t the Los Angeles-based federal district court have a late filing box where after-hours court filings can be time-stamped and filed, allowing anything filed in person before midnight to be treated as filed on the date of deposit even after the clerk’s office has closed?

It was my understanding that anything other than an initial complaint could be filed electronically in federal court. That’s the case in the Middle District of Tennessee. It seems the Central District of California did not expand electronic filing to all pleadings until the turn of this year, which is really slow to the game.

Second, as Howard Bashman mentions in the post, most courts have drop boxes. Anything found in the drop box by midnight (or by opening of business the next morning, depending on the court), is counted as filed that day. The Central District of California gives us the lamest excuse I’ve ever heard for not maintaining a metal box

The district court’s web site states here that “The drop-off box service has been discontiuned” [sic]. Apparently inadequate funding from the U.S. Congress is to blame for that court’s reduced hours of operation.

Really, how much funding does it take to tie down a glorified mail box?

Whew.

There is a smattering of new laws going into effect in Tennessee come January 1, 2008. Always the most interesting to me, considering what I do on a daily basis, are the new criminal statutes. The Crooks with Guns law, as it has been entitled, drastically increases the punishments for gun related crimes associated with the commission of certain enumerated “dangerous felonies”. I have uploaded a quick outline summary I did of the law this morning here (the entire statute can be found here). The operative elements of the new TCA 39-17-1324 are as follows:

(a) Possessing a firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony

(b) Possessing a firearm during

1. the commission of a dangerous felony;

2. an attempt to commit a dangerous felony;

3. flight or escape from the commission of a dangerous felony;

4. flight or escape from the attempt to commit a dangerous felony.

The teeth are in the sentencing. If the defendant has a prior felony conviction, the law creates a new class of felony, essentially a “Super C Class” and a “Super D Class”. Violations of subsection (b) are deemed a Class C felony, but demand a mandatory minimum ten (10) year sentence with zero release eligibility, and no option for supervised release. However, the standard Class C felony for a Range I offender is three (3) to six (6) years. The new law stands alone at a minimum of ten (10) years, regardless of the range of the offender (this isn’t problematic with Range II offenders, where the range itself is six (6) to ten (10) years, where the minimum simply becomes the maximum already allowed in the range). A violation of subsection (a) is a Class D felony, with a minimum sentence of five (5) years if the defendant has a prior felony conviction. Without a prior felony conviction, the minimums are six (6) and three (3) years, respectively.

As well, jail credit is tweaked with the new law. In Department of Correction custody, one typically qualifies for “good time”, which is usually getting three days of credit against your sentence for every two you serve (standard in local Davidson County custody, which is for sentences under six (6) years, is two days for every one day you serve). The Crooks with Guns law largely eliminates such good time - akin to federal sentencing rules, you can complete your sentence no earlier than after having served 85% of it.

One aspect of the proposed change in the gun laws puzzles me, however, In amending TCA 39-17-1307, possessing a deadly weapon that is not a firearm in the commission of a “dangerous felony” as listed in the Crooks with Guns law is a standard Class E felony. That part makes sense, and would apply to knives, pool cues, baseball bats, etc. However, possessing a firearm in the commission, attempt to commit or escape from a non-dangerous “offense” (note, not felony) is a Class E felony. A Class E felony entails a one (1) to two (2) year sentence for a Range I offender. So, in essence, if you possess a firearm while committing the least serious misdemeanor, you could suffer a felony conviction (think Driving on a Suspended License because of unpaid tickets, or Criminal Trespass, both Class C Misdemeanors - and the way it is written, possessing a valid concealed carry permit wouldn’t matter a lick).

To me, this part seems to be an overreach of the law, and would operate entirely outside the spirit of the Crooks with Guns law. Hopefully the amended wording won’t be enforced in that manner, but with the way the legislature wrote it, my reading certainly confirms the new law would allow it.

I caught the end of Dead Man Walking on TV this afternoon.  (I saw the movie in its entirety in the theater.)  While the stance of its producer and stars … Tim Robbins, Susan Sarandon and Sean Penn … is known, I think the movie does an excellent job of making you feel for both sides of the debate on capital punishment.

This is an issue for which I have never reached a satisfactory resolution.  When I see news stories about horrendous crimes done against children, I want to see the perpetrator removed from the planet.  Sometimes I feel that I would offer my services on the firing squad.  But, in other moments, I simply can’t see the point of the death penalty.  What gives the state of Tennessee the right to take a life?  This government can’t even develop a successful lottery scholarship program!  I actually would have more understanding if a parent or other family member was driven to kill the person who kidnapped/abused/killed his child.  Put me on the jury and I will vote to set that parent free every time!

I readily admit to flip-flopping on this issue.  And, I’m not sure how I can ever put the spatula down and settle on a side.

I’m not sure how many George Mason University Law students read this blog, but Ilya Somin over at the Volokh Conspiracy has an RA opportunity for you. The details are here.

Though I must note the word “lucrative” is used. If there were any lucrative RA opportunities when I was at GMUSL, I surely missed them.

I just received this email from the Tennessee Bar Association a few minutes ago

Judges show restraint by not answering campaign questions

TBA President Larry Wilks today applauded the “judicial restraint” that resulted in the low response rate to the questionnaire fostered by the Family Action Council of Tennessee. The “voter guide,” which was published last night on Chattanoogan.com, carries responses from only four of the 64 judges and judicial candidates who received the survey. Even judges who are shown as responding to the questions — which include evolution and other possible controversial issues — declined to answer most of the questions because they considered them inappropriate. Twenty-four of the judges responded by letter and without responding to the survey.

“It is precisely because we believe that it is inappropriate to respond to such questionnaires that the TBA has been such a strong backer of the formal judicial performance evaluation of appeals judges,” said Wilks. The TBA has continued to urge voters to use the evaluation, which is based upon surveys of litigants, jurors, lawyers and the public, because it is a credible and unbiased assessment of each appellate judge’s performance.

As to local judicial races, Wilks noted that friends, family, and neighbors often turn to lawyers to help in evaluating how to vote. He urged TBA members to give their careful, professional view on judicial races. “Every member of the public should be as informed as possible in order to avoid being mislead by special interests,” said Wilks.

I’m honestly not a fan of such questionnaire’s, either (the link noted in the email is here). It is inappropriate for any judge to answer questions that may tip off his or her decision or bias on a matter that may come before the court. I know this isn’t necessarily a popular position with some fellow conservatives, but it’s a good way to keep the judiciary independent where lifetime appointments are not in play. The retention votes can certainly be based on judicial decisions, but jumping the gun with a questionnaire is unnecessary.

Appellate level judges, if acting sufficiently against the people’s wishes, can in fact be removed. If any decision is against a group’s positions, they certainly can lobby to defeat a particular jurist. In fact, one of the most recent and contentious judicial elections occurred in West Virginia just a couple of years go, where a sitting Supreme Court justice was defeated. It’s not impossible.

The most annoying end-note to any blog post has proven itself worthy of its author. Roger Abramson thinks that the sloppily anonymous blogger South Knox Bubba (since outed) is a jerk. I think he’s probably right. From a rather indignant post

You may recall from last week that WKRN News2 blogger A.C. Kleinheider or someone at the station improperly copied a copyrighted photo from this site and republished it without permission.

I brought this to their attention, noted the site rules and copyright notices, and politely asked that the photo be removed. Their response was that they hadn’t done anything wrong, and that if I believed I had a “legitimate legal grievance” I should take it up with the station.

So I did.

…

Their somewhat cavalier attitude did not seem like a reasonable response to a reasonable request, so I retained attorney Charles E. Young of Kramer Rayson in Knoxville to take legal action.

Friday afternoon, Mr. Young sent a letter advising Mr. Kleinheider, WKRN News2, and station owner Young Broadcasting that KnoxViews site rules, and WKRN’s own site rules, had been violated, that the Young Broadcasting code of professional ethics had been breached, and that more seriously, it was a violation of federal copyright law with potentially serious liabilities.

To their credit, WKRN News2 took quick action and the post with the photo in question was removed within one hour of receiving Mr. Young’s letter. As of this writing, we are still waiting for certification that the photo has been removed from their servers. While I appreciate their quick response, it’s disappointing that I had to hire a lawyer to resolve what should have been a simple matter of complying with a simple, reasonable request.

If SKB had any business sense, he would have just asked to be credited on the picture - a link maybe to his company, to sell more advertising or images. That would require some insight. As many may have noticed, Msr. Neal (er, Bubba) did not take it up with the station himself. He decided to hire a lawyer instead and elevate the situation. Technically, the law may be on one’s side. That fact however doesn’t keep one from smelling bad when invoking it (for instance, the curmudgeon who calls the cops to prosecute the neighbor’s kids for trespassing when they fetch an errant baseball). This is a clear case of elevating to mountain status some rather ordinary mole hills.

The most important element in any civil action is damages. The picture in question apparently came from SKB’s site, KnoxViews, which leads me to ask - how much in damages are we really talking about? It appears that Bubba just can’t resist an opportunity to be pissy.

And here’s a neat little tidbit - a lesson in fashion to SKB, which is only fair since he’s taken on the task of educating the rest of us about how to stand astride one’s work and wiggle a finger for a couple of bucks and some cheap publicity.

If things are in a knot, it’s always okay to buy bigger undergarments.

Ok, then.

UPDATE More from Abramson on the matter here.

FURTHER UPDATE Based on the comments, I need to make it clear that Bubba’s behavior offends me more as an economist than a lawyer. It’s one thing for an individual to take another’s intellectual property and employ it as one’s own work, or to seize a massive amount of intellectual product and start making mad cash with it. It’s quite another to see it used in a “fair use” type environment. And it’s quite another if the person making fair use is willing to offer exposure and accreditation to the work, whatever it might be. If you’re smart, you encourage this type of activity, as it benefits you far and above anything you might achieve with a cease and desist hissy fit.

More props to my law school alma mater…this time out of the Nashville blogosphere.

Law and economics - it’s the wave of the future. And GMUSL is at the forefront.

This one is funny, and since I was the one involved, I’m going to retell it. I was in Wilson County last week representing a civil client on a suspended driver’s license. I got involved after the judge had given her multiple opportunities to resolve some outstanding fines. The judge went down the docket

Judge: Jackie Smith

Me: No judge, she doesn’t - that’s why I’m here.

It was funnier if you were there, probably. At least Judge Tatum and the bailiff laughed.

David Bernstein, present professor at George Mason University School of Law (my alma mater), has this to say about GMU’s success in reaching the Final Four

Holy Cow, George Mason’s in the Final Four!: I generally completely ignore “March Madness,” and have no interest in college basketball. But we here in the Bernstein household (GMU professor, GMU graduate school alum, and baby) are very excited by George Mason’s success. If nothing else, we are going to be a lot less likely to hear “where?” when we say we teach at/graduated from George Mason. Relatedly, while some mediocre law schools clearly benefit from being affiliated with renowned universities (I won’t mention any names here), GMU Law School has long suffered from being affiliated with (what is unfairly known as) “that commuter school in Fairfax.” So go Patriots!

A rising tide floats all boats.

Wisconsin has just passed a law capping pain and suffering damages in medical malpractice cases

Rep. Curt Gielow (R-Mequon), co-author of the latest measure, said having such a limit in place was important to bringing stability to the health care marketplace.

“It’s a fine balance between fairness to the injured plaintiff and fairness to the overall public that needs access to health care,” Gielow said.

Actually, it’s a boon to insurance companies, who no longer have to pay big settlements and judgments while maintaining the same rate of increase in premiums. Torts are not the reason for rising costs of healthcare - the disconnect between insurance providers and their customers, both doctors and patients, is the reason. Individuals who have been permanently damaged because of someone else’s reckless or negligent behavior deserve compensation. The call for tort reform is a frequent one from members of my party, but it’s bad policy. It will not get us where we want to go.

From the Tennessee Litigation Business Blog

When a judicial opinion cites “Billy Madison” as authority for denying your motion, it may be time to reevaluate your case. Here is one such opinion from the United States Bankruptcy Court for the Western District of Texas.

But it’s better than commenters on your blog citing Tommy Boy.

That’s the sentiment that Antonin Scalia expresses. From Michael Silence

PONCE, Puerto Rico — People who believe the Constitution would break if it didn’t change with society are “idiots,” U.S. Supreme Court Justice Antonin Scalia says.

In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution “as it was originally written and intended.”

Certainly Scalia could have been somewhat more diplomatic, but his sentiment regarding the importance of the “living document” nonsense are sound. The Constitution is decidedly dead. There’s a reason that the Founders made it so hard to amend. Over-interpretation of the Constitution has resulted in a both an expansion in government power and simply bad constitutional law (penumbras, commerce clause jurisprudence, and expanded eminent domain, just to name a few). As Scalia continues

Proponents of the living constitution want matters to be decided “not by the people, but by the justices of the Supreme Court.”

“They are not looking for legal flexibility, they are looking for rigidity, whether it’s the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable,” he said.

Based on his jurisprudence, it’s safe to presume he is referring to gay marriage as a federal right when discussing “homosexual activity”, which always amuses me because no one has yet found a right to heterosexual marriage in the federal Constitution. As Scalia aptly notes, the devolution of the Supreme Court into a public policy vehicle for the many pet issues of the Left is a bastardization of the institution. I’m always comforted knowing Scalia realizes this, and if Alito and Roberts prove over time to be of a similar mindset, the Court will continue its progression to its proper pre-Rooseveltian role.

When failing in your God-charged duties, file a law suit. That’s what a bunch of parents in Massachusetts have done

Wakefield, Mass., mother Sherri Carlson said she tries her best to get her three kids to eat healthy foods.

“But then they turn on Nickelodeon and see all those enticing junk-food ads,” Carlson said. “Adding insult to injury, we enter the grocery store and see our beloved Nick characters plastered on all those junky snacks and cereals.”

Carlson and another plaintiff, Andrew Leong of Brookline, Mass., spoke at a news conference organized by the Center for Science in the Public Interest and the Boston-based Campaign for a Commercial-Free Childhood.

They intend to sue Kellogg and Nickelodeon parent Viacom Inc. in state court in Massachusetts and served the required 30 days’ notice on Wednesday.

So here’s what must happen. These little kids watch Nick, see a tasty treat, grab the keys, jump in the car, and come back with a case of Fruit Loops from Costco. Or, the parents take their kids with them grocery shopping, have the will power of a wet noodle, and buy whatever the kids whine for without real objection. If anything, the kids ought to be suing the parents for the subpar genes they have inherited.

Some individuals have been so desensitized from the concept of their own responsibilities and are so lazy and feeble of mind that law suits like this are actually rationalized and viewed as justified. We have arrived at the point that if you can’t parent effectively, you can blame a corporation. Geeze.

I was recently in a deposition, where the deponent, who followed direction well, did not answer with certainty when she wasn’t certain. In fact, she may have stuck to this rule a little too well. After four questions in a row where she immediately answered “I don’t recall”, the deposing attorney asked

Q. Do you have some mental disease that affects your ability to recall facts?

A. I don’t recall.

Classic.

Thanks to Say Uncle for linking to this

Sometime in late 2001, Officer Ron Jones collected a tip from an anonymous informant that Jamie Smith, who lived opposite Maye in a duplex, was selling drugs out of his home. Jones passed the tip to the Pearl River Basin Narcotics Task Force, a regional police agency in charge of carrying out drug raids in four surrounding counties. The task force asked Jones if he’d like to come along on the raid they’d be conducting as the result of his tip. He obliged.

On the night of December 26, the task force donned paramilitary gear, and conducted a drug raid on Smith’s house. Unfortunately, they hadn’t done their homework. The team didn’t realize that the house was a duplex, and that Maye — who had no relationship with Smith,– rented out the other side with his girlfirend and 1-year-old daughter.

As the raid on Smith commenced, some officers - including Jones — went around to what they thought was a side door to Smith’s residence, looking for a larger stash of drugs. The door was actually a door to Maye’s home. Maye was home alone with his young daughter, and asleep, when one member of the SWAT team broke down the outside door. Jones, who wasn’t armed, charged in, and made his way to Maye’s bedroom. Because police believed Maye’s side of the duplex was still part of Smith’s residence, they never announced themselves. Maye, fearing for his life and the safety of his daughter, fired at Jones, hitting him in the abdomen, just below his bulletproof vest. Jones died a short time later.

Maye had no criminal record, and wasn’t the target of the search warrant. Police initially concluded they had found no drugs in Maye’s side of the duplex. Then, mysteriously, police later announced they’d found “traces” of marijuana and cocaine. I talked to the attorney who represented Maye at trial. She said that to her knowledge, police had found one smoked marijuana cigarette in Maye’s apartment. Regardless, since Maye wasn’t the subject of the search, whether or not he had misdemeanor amounts of drugs in his possession isn’t really irrelevant. What’s relevant is whether or not he reasonably believed his life was in danger. Seems pretty clear to me that that would be a reasonable assumption.

It apparently wasn’t so clear to Mississippi’s criminal justice system. In January of last year, Maye was convicted of capital murder for the shooting of Officer Jones. He was sentenced to death by lethal injection.

Let’s summarize: Cops mistakenly break down the door of a sleeping man, late at night, as part of drug raid. Turns out, the man wasn’t named in the warrant, and wasn’t a suspect. The man, frigthened for himself and his 18-month old daughter, fires at an intruder who jumps into his bedroom after the door’s been kicked in. Turns out that the man, who is black, has killed the white son of the town’s police chief. He’s later convicted and sentenced to death by a white jury. The man has no criminal record, and police rather tellingly changed their story about drugs (rather, traces of drugs) in his possession at the time of the raid.

First, shame on the district attorney for bringing this case. Second, shame on the jury for the way it voted. Two comments from jurors show that concern for the facts was limited if not nonexistent

Maye’s attorney tells me that after the trial, she spoke with two jurors by phone. She learned from them that the consensus among jurors was that Maye was convicted for two reasons. The first is that though they initially liked her, Maye’s lawyer, the jury soured on her when, in her closing arguments, she intimated that if the jury showed no mercy for Maye, God might neglect to bestow mercy on them when they meet him in heaven. They said the second reason May was convicted was that the jury felt he’d been spoiled by his mother and grandmother, and wasn’t very respectful of elders and authority figures. The facts of the case barely entered the picture. Gotta’ love the South.

So, his defense lawyer did something stupid, and he was “uppity”. Therefore he deserves death for defending his home and his daughter. Geeze. From an email posted by Glenn Reynolds

My brother and I (both military officers and strong police supporters) were just discussing “no-knock” raids last week. A citizen has every right to defend himself in his home to unknown intruders. Not too long ago, a family was the victim of home intruders posing as cops. I’d be hard-pressed to believe anyone barging in my home in the middle of the night, especially if I KNEW I wasn’t a criminal. “No-knock” raids should be illegal in all 50 states.

Further, why doesn’t the Hollywood crowd take up the cause of a truly wronged black man on death row, instead of real criminals like Tookie and Mumia?

Fair point. Where are the death penalty opponents on this one? You find what I can see as a clear-cut case of an unjust result and the usual suspects are nowhere to be found. Where are the privacy advocates? This is a case where the defendant would have been acting immorally if he didn’t shoot the intruder.

Balko has some more follow-up here, including an interesting conversation with the circuit court clerk, some excerpts of incorrect media coverage, and a disection of the relevant Mississippi statute.

There are so many at fault here, from the police, to the judge, to the jury, to the defense attorney, to the district attorney that I simply do not know where to start. Based on the statute alone the judge should have directed a verdict. Geeze.

A General Sessions victory - they seldom happen in criminal cases. I had a client who had a sister, who was arrested with her. As usual, the warrants used to arrest were substandard, with minimal helpful information. Unfortunately for my client, she was a near twin of her sister, which presented a peculiar ID problem. The charge was aggravated robbery, which in this case meant a robbery with the use of deadly force.

The alleged victim was of Hispanic descent, and did not speak English. The use of an interpretor in preliminary hearings is always interesting, and makes for a different and sometimes difficult dynamic. In this case, the difficulties included determining the difference between left and right. The facts as testified were that the victim was playing the piano. He left the door to the apartment open as he expected his roommates to arrive back from the store. In the meantime, a girl came in and demanded money at knife point. This girl was my client’s sister. The testimony was shaky, and difficult to understand.

The victim could not understand English, but made a positive ID in a photo lineup of my client. Irrelevantly, his two roommates, who were not present for the incident with the knife, made the same ID. The victim however was confusing right and left at the hearing, pointing at the wrong defendant. After the judge (Judge Gale Robinson, a great and fair judge here in Nashville), the DA and we defense attorneys figured out the problem (it didn’t take too long) , we eventually got things figured out. But I wanted to make it clear for the court.

At my chance for cross examination, I asked my client to stand up, pointed at her with a pen, and asked the victim if she was the one who robbed him. His answer was “no”. I asked him if he was drunk during the incident (a previous point of questioning during co-defendant’s counsel’s cross) , and he said no. The negative ID on my client stood.

A quick motion to dismiss once the hearing was concluded and my client was released. In criminal defense you lose 90% of the time, and attempt to mitigate most of the time. In this case, it was a clear win - and for the right reasons.

There are more interesting things that happen but I seldom blog about them. I think I might add those experiences as a common addition to the blog. More good stuff as it happens.

For those interested in what the Sixth Circuit is up to, be sure to check out the Sixth Circuit Blog.

I’m presumptuous as a lawyer assuming everyone knows the Sixth - it includes Tennessee, Kentucky, Ohio and Michigan. A map for all the circuits is here.