opinions, everybody's got one...
Saturday, April 27, 2002
in loco parentis
New York Times Magazine reports on a wrongful death lawsuit (regist. req'd) brought by the parents of Elizabeth Shin against MIT.
Two years after Elizabeth's death on April 14, 2000, the Shins have filed a $27 million wrongful death suit against M.I.T. in a Massachusetts superior court. The Shins claim that M.I.T., overly concerned with protecting Elizabeth's confidentiality, failed to inform them of their daughter's precipitous deterioration in the month before her death. This, they say, robbed them of a chance to oversee her care or perhaps even to save her life. M.I.T., the Shins claim, made matters worse by failing to act in their place, ''in loco parentis to the deceased.'' The school did not provide adequate, coordinated mental health care for their daughter, they claim, nor a proper emergency response to the fire.A bright and gifted student, Elizabeth Shin's tale is one that has schools and parents across the country wondering about the role that a school may need to take.
Friday, April 26, 2002
The ultimate yardstick of how the Hewlett v. Hewlett Packard case will be decided won't come down to some arcane interpretation of a law. That's not how a court of equity works. And Delaware's Chancery Court is a court of equity. The measurements made by Chancellor Chandler are ones marked by fairness. What are the facts of the case? What potential harm exists to all of the people involved in making a decision one way or another? Were the shareholders mislead? Was the investment bank coerced into voting a particular way? Were economic forecasts misleading? Were they so misleading, intentionally or unintentionally, that a vote was made without a reasonable understanding of the possible risks involved in a merger? Did the people making those forecasts act in good faith? Can a remedy be drafted that will overcome potential problems with the vote, such as another vote? Would another vote likely produce the same results? Would the cost in time and money to hold another vote be damaging to parties involved, including all of the shareholders?
You can pull out legal doctrines and precedents from previous Delaware and Chancery Court cases all you want, and polish them up nice and shiny and point to them and make whatever prognostications that you may. But when it comes down to the top judge in the Chancery Court making a decision in this case, what matters is fairness. The legal doctrines and the precedents are ways of getting there, but the result is something that will be based upon simpler rules of equity. These words from former Chancellor William T. Quillen apply here:
Unlike its extinct English ancestor, the High Court of Chancery of Great Britain, Delaware's Court of Chancery has never become so bound by procedural technicalities and restrictive legal doctrines that it has failed the fundamental purpose of an equity court--to provide relief suited to the circumstances when no adequate remedy is available at law.
Thursday, April 25, 2002
I've been fascinated by juries ever since seeing the movie 12 Angry Men when I was young. The film is about a murder, and a murder trial, but it doesn't show you those things. It waits until after the closing statements, and a decision has to be made regarding the defendant's innocence or guilt. It asks "what goes on" behind the closed doors during a jury's deliberations?
The movie has made me think a lot about the role of jurors in our justice system, and what it means to our government. The conclusion that I've come to is that being a juror is the closest a person can get to exercising their rights to live in a democracy.
How did I arrive at that position? We often view government as something that provides services to us, its citizens. We may be missing something when we think that way. We are not the government's customers; we are the government. We are the government when we vote, when we obey the laws, when we pay our taxes, when we allow others to represent us, when we exercise our freedom of speech, and when we run for office. By acknowledging government's existence, and allowing it to continue, we are the government. Another way of saying that is that government "governs at the consent of the people."
Our country is a democratic republic. There is room for contradiction by joining those two words together. A pure democracy calls for social justice and equality. A republic requires that laws are passed to keep the country together, and civic duty and sovereignty are called for. Sometimes the two concepts clash.
When you are a juror, you examine specific laws being applied to a particular person, or a business. You look at the facts of that case, and make a decision that can affect the life, liberty, or property of one or more people. By exercising your right to be a juror, you allow someone else the right to be judged by other people, not by some nameless, faceless government. By being a juror, you join in with others and decide whether a law is good or bad and whether that law is being applied correctly. Sometimes, you are even deciding whether the prosecutor is acting on behalf of the state, or on behalf of someone's personal agenda.
Sadly, the author of the movie 12 Angry Men died last Friday. I'm not bothered to say that a movie had a profound impact on the way that I think about government, and I'd like to thank Reginald Rose for the insight that he provided in this film.
An article by Delaware Attorney Kester Crosse in today's Wilmington News Journal is on the topic of juries in civil cases. A law is being considered by the State Legislature that would allow a decision by a super majority of jurors to stand as valid by the jury rather than an unanimous decision, as is required now. Mr. Crosse presents a well reasoned argument in favor of the legislation. Do I agree with him? I'm not certain. While the movie 12 Angry Men involved a criminal case rather than a civil one, I still can't help but think that if not for one juror playing devil's advocate, an innocent man would have been found guilty of a crime that he didn't commit.
court ordered movie viewing
It seems that court ordered movie viewing is not as novel as it would seem. Nor is the western style of justice limited to places left of the Mississippi. A recently retired Delaware judge once sentenced a prisoner to watch "The Life and Times of Judge Roy Bean", as he told the prisoner "I am the law west of the Christina" [or is it Christiana?].
Wednesday, April 24, 2002
cool hand luke
A couple of inmates in New Mexico tried to walk away from the road crew that they were working on. One of them had one day left on his sentence, and the other had about 71 days. They walked out into the desert, and found themselves in the midst of a swat team exercise. Now the judge has ordered them to watch the movie Cool Hand Luke. They face possible five year sentences for felony escape.
more cassidy on delaware
It might seem like I was criticizing Mike Cassidy of the Mercury News from San Jose, yesterday. I have to confess that I found his article to be one of the more readable ones in yesterday's long list of Hewlett v Hewlett Packard stories churned out by the media. Today's column, Riveting Drama had its share of tension, was even better.
Now many web users can also access this legal info site at www.delaware.law.
Tuesday, April 23, 2002
picking on delaware
One of the stories this morning about the Hewlett v Hewlett Packard case in Chancery Court was from Mercury News reporter Mike Cassidy. Mike's mission, it seems, was to educate the Bay area readers about Delaware. I've been to the Bay area, and it's a lovely place, and I guess I can understand a little why Mike would want to poke fun at the First State. His article was funny, but a little misleading. I'd like to clear up some of the points he makes:
Mike: First, Delaware is actually a state. You probably thought it was a suburb of Philadelphia, which isn't entirely incorrect.
Me: Delaware was actually part of the territory governed by William Penn, way back when. But, the legislature kept on passing laws that didn't include the "lower three counties," as we were referred to in those days. Delawareans asked for independence, and we got it too. But, we missed out on one of the most important things Philadelphia did for our nation. It's all in the cheese steaks. A Philadelphia cheese steak isn't authentic unless it is made with cheese whiz. I don't think that you can buy a cheese steak in Delaware with cheese whiz on it.
Mike: Second, forget what you learned in school about Rhode Island. No way that Delaware's larger. Take out a map and look. If you can even find Delaware. (It's over there, near Washington, D.C.) No way there's a smaller slice of America. I could walk across this state in the time it takes you to drive to work.
Me: You're sounding a little bit like a bully, Mike. The "my state is bigger than yours" line really isn't called for here. Besides, it's a lovely walk.
Mike: Fact: They call it Chancery Court because it sounds really cool.
Me: They call it Chancery Court because that's its name, and has been for a couple of hundred years. That the Court is really cool is just Delaware's good fortune.
Mike: Fact: More chickens than people live in Delaware. This I know because every article about Delaware says so.
Me: Rita Farrell, of the San Francisco Chronicle, managed to write an article this morning that didn't mention the chickens. But, then again, she's been writing about Delaware for a few years, and maybe she got tired of including them after a while. I saw her earlier today and didn't get a chance to ask. If I run into her tomorrow, I'll check and find out.
Mike: Fact: Nobody actually lives in Delaware. People just come here to sue each other.
Me: That's just blatantly untrue. There are plenty of us who live here in Delaware. Not only that, but we all know each other. A couple of times a year, we have a block party, and everyone is invited.
Mike: Fact: Delaware's state bird is the blue hen chicken, which is not the same as saying the few who live here are lacking in courage.
Me: Promise that you won't tell PETA, Mike, but the Blue Hen Chicken was a fighting game cock. It was also the nickname of a company from Delaware that fought in the revolutionary war and were renown for their courage (and their gambling). And, you might not want to repeat that implication about lacking courage on the streets of Wilmington, just in case Michael Spinks or Dave Tiberi overhears you. Most of us would understand that you just don't know what you're talking about. Those guys might take exception to your trolling.
Mike: Fact: George Washington did indeed cross the Delaware River, but he crossed from Pennsylvania to New Jersey, thereby avoiding Delaware altogether. Of course, we can't all be so lucky.
Me: I guess as Delawareans, we're a little more familiar with the adventures of George Washington than you might be. The Battle of the Brandywine did take place a long time ago, so you may not be aware of the hospitality that George Washington received on his visit to Wilmington, Delaware. He also had some of those Blue Hen Chickens fighting along side him.
Mike, if you've come here from the Bay area, I hope that you are enjoying your visit. If you want, please let me know and I'll give you the nickle tour of Delaware. Probably only take a couple of hours.
camping out in delaware
Some were tired, some were happy, some were drinking as much coffee as possible to keep awake. I arrived this morning at the Daniel Herrmann Courthouse in Wilmington Delaware to find a very long line of people. Many of them were being paid to hold places in line for attorneys, investors, reporters, and other interested parties. Rumor has it that the line started forming around 3:00am. Another rumor is that a few people who just happened to be on the streets during the early hours of the morning were offered $65 an hour to hold a place in line for some attendees.
The case is Hewlett vs Hewlett Packard, and the proceeding is being heard by Delaware's Chancery Court. It is receiving a great deal of press coverage:
Irritated Fiorina testifies in trial (cnet news.com)
Company memos called deceptive (CBS MarketWatch)
Hewlett Attorneys claim Deal Deception (Wilmington News Journal)
Another Round in Carly vs. Walter (Smart Money)
There will likely be more. I haven't seen so many people running out of a courthouse to get onto a cellular phone in a long time. The trial is scheduled to last three days, so I expect that will be a common sight over the next couple of days. I also expect that there will be a somewhat larger collection of casual observers standing around the courthouse early in the morning tomorrow hoping that someone offers them money to hold a place in line. Hmmm, maybe if I go to sleep now...
returns day, taken under advisement
Another Delaware legal tradition, in the Courts, is the process by which a judge does not announce the Court's decision on a case from the bench. It is called, "taking the case under advisement".
In a fair percentage of cases, Delaware Judges will thank the litigants for their presentation and adjourn to chambers (duck out the back door). The decision is later mailed to the parties and their attorneys. This process serves two very good purposes.
First, it reduces fist fights in the Courthouse. The litigants leave the building not yet knowing who has won and who has lost. That sense of bewilderment and confusion distracts them long enough from their bloodlust for the opponent, that they can actually get home before they start to stew again.
Secondly, it gives the judge an opportunity to sit back and contemplate the evidence that was presented at trial, and to research points of law that may have arisen. As we learn from our personal lives, many times things seem much more clear once we have had a chance to sleep on it.
Return Day is an excellent tradition. As was described below, it allows society to heal and re-group. I think that it is such an excellent tradition that we should use it in all three of Delaware's counties. I think this would help to heal the resentment that many in Kent County and New Castle County feel towards Sussex County because of the fact that Sussex currently has one more holiday than the rest of the State.
You be the judge on this one. Take this under advisement...sleep on it.
Monday, April 22, 2002
delaware reacts to HP case
The Mercury News has an article on the Hewlett vs. Hewlett-Packard trial to be held in Delaware's Chancery Court on Tuesday called HP case ready for justice, Delaware-style. It does a nice job of summing up Delawareans reactions to the dispute. The article also mentions the Sussex County tradition of Return Day, but doesn't go into much detail. It's a tradition that began in 1792, and involved the winners and losers of Delaware elections gathering together two days after an election to find out the results, and to bury the hatchet, and begin the healing process:
In modern times, when election results are often known before the polls close, Return Day serves as a reminder to all Sussex Countians of their past. An ox roast with free sandwiches to the public has replaced the possum and rabbit but craftsmen and vendors still hawk their wares. A large parade still highlights the celebration, but now the victorious candidates and their former opponents ride together in open horse drawn carriages and convertibles in the spirit of cooperation for the good of the citizens.It's a tradition that litigants in corporate disputes could learn from.
776 death penalty cases
The Supreme Court will begin hearing a case this morning on the sentencing aspect of a death penalty case which may have an impact on 776 death penalty cases in nine states. In those states, the jury hears the case, and the judge makes the final sentencing decision, which may be based upon information that didn't come out in the trial. The case before the Court is from Arizona, but if the Court decides to overturn the sentence in that case, it may have an impact on other states that also allow judges to hear additional evidence at the time of sentencing.
Does the sentencing hearing amount to a second trial conducted in violation of the defendant's Sixth Amendment right to be tried by a jury of his peers? That is the question the US Supreme Court takes up this morning in a potential landmark case that could dramatically shift the way criminal sentences are meted out in courts nationwide.If the Court overturns the Arizona sentence, it could have a much greater impact than just upon death sentence cases. Other cases at risk are ones where a judge sentenced someone using facts which were not presented to the jury, and those facts caused the sentence to be enhanced in severity beyond what was called for by statute. Delaware sentences could be affected by the decision in this case.
Sunday, April 21, 2002
dogs and postmen
A link on metafilter to a page called When dogs attack brought me to a couple of other pages that looked worth a visit. One of them was Dog Bite Law, which bills itself as:
The most extensive research site for dog bite victims, dog owners, parents, journalists and others needing to learn about the legal rights of victims, how to protect children, and other aspects of the dog bite epidemic.The other page is specifically for mail carriers. It's PostalWorkersOnline.com.