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Middleton v Vosper Thornecroft (UK) Ltd

simon.gibbs@gwslaw.co.uk (Simon Gibbs) — Tue, 09 Feb 2010 05:27:00 GMT

I acted in a detailed assessment recently where the Claimant had failed to serve a statement of reasons in respect of the success fee in accordance with CPD 32.5(3) when serving the bill of costs and notice of commencement. The appropriate statement was subsequently served. It was argued for the Defendant that the failure to serve with the bill amounted to a breach of the rules which was not rectified simply by serving the document late and the consequence was that the success fee was not recoverable. The judge questioned where in the rules it stated that the document needed to be served with the actual bill. Despite my best efforts, I was unable to point to a specific provision that dealt with the time for service. The judge concluded that it would be sufficient to serve the document in advance of the hearing and therefore allowed the success fee.

In the event, this decision was not decisive to the outcome of the detailed assessment and I still managed to comfortably win on the Defendant’s offer. However, I was left with the strong feeling that the judge was wrong but unable to identify quite where he had gone wrong. The best I was able to do was note that the heading to the section listing the documents to be served is worded: “Commencement of detailed assessment proceedings”. Common sense therefore suggests that the timing for service of the documents is at the same time as commencement of the detailed assessment proceedings (ie when the bill and notice of commencement is served, as per CPR 47.6).

Before travelling to the hearing I had put in my briefcase a copy of a judgment I had come across on Lawtel that looked interesting. I didn’t have a chance to read this on the day of the hearing. You can imagine how annoyed I was when, a few days later, I got around to reading the judgment only to discover it was exactly the case I needed.

In Middleton v Vosper Thornecroft (UK) Ltd & Others, CC (Winchester) 2/6/09, the claim was funded under a CFA that pre-dated the revocation of CFA Regulations 2000. No statement of reasons was served with the Bill but some reasons were subsequently provided in the Claimant's replies. His Honour Judge Iain Huges QC, sitting with Regional Costs Judge James, made a number of findings:

1. The “statement of reasons” to be served must be “the statement of reasons as included in the CFA. The paying party is entitled to the whole of that statement and not an abbreviated version. Further, he is entitled to know that that is what he is being given”. He concluded: “the statement of reasons set out in the reply did not amount to a compliant statement. First, because it was neither provided nor identified as being the statement of reasons given in the CFA. Secondly, it did not have the appearance of being such a statement. Thirdly, even if it had been identified as the statement of reasons in accordance with the rules, in fact it was not”.

2. The “CPR require the receiving party to serve the statement of reasons and the other documents specified in section 32 at the same time of serving the notice of commencement and that the Claimant in this case failed to do that. That triggers the sanction imposed by CPR 44.3B(1)(d) which denies recovery of his success fee”.

Another useful case in defendants' armoury.

Prayer Candles

Tue, 09 Feb 2010 04:01:36 GMT

Situationist Contributor John T. Jost and his co-authors Lindsay E. Rankin and Cheryl J. Wakslak recently published a fascinating article, titled “System Justification and the Meaning of Life: Are the Existential Benefits of Ideology Distributed Unequally Across Racial Groups?” 22, Social Justice Research 312 (2009). Here’s the abstract. * * * In this research, we investigated the [...]

Situationist Contributor John T. Jost and his co-authors Lindsay E. Rankin and Cheryl J. Wakslak recently published a fascinating article, titled “System Justification and the Meaning of Life: Are the Existential Benefits of Ideology Distributed Unequally Across Racial Groups?” 22, Social Justice Research 312 (2009). Here’s the abstract.

* * *

In this research, we investigated the relations among system justification, religiosity, and subjective well-being in a sample of nationally representative low-income respondents in the United States. We hypothesized that ideological endorsement of the status quo would be associated with certain existential and other psychological benefits, but these would not necessarily be evenly distributed across racial groups. Results revealed that religiosity was positively associated with subjective well-being in general, but the relationship between system justification and well-being varied considerably as a function of racial group membership. For low-income European Americans, stronger endorsement of system justification as an ideology was associated with increased positive affect, decreased negative affect, and a wide range of existential benefits, including life satisfaction and a subjective sense of security, meaning, and mastery. These findings are consistent with the notion that system justification satisfies psychological needs for personal control and serves a palliative function for its adherents. However, many of these effects were considerably weakened or even reversed for African American respondents. Thus, the psychological benefits associated with religiosity existed for both racial groups, whereas the benefits of system justification were distributed unequally across racial groups.

* * *

To read a sample of related Situationist posts, see “John Jost Speaks about His Own Research,” “The Situation of Ideology – Part I,” “The Situation of Ideology – Part II,” “Ideology is Back!,” “A System-Justification Primer,” “Barbara Ehrenreich on the Sources of and Problems with Dispositionism,” “The Motivated Situation of Inequality and Discrimination,” “John Jost on System Justification Theory,” “John Jost’s “System Justification and the Law” – Video,”

To review other Situationist posts about system justification or ideology, click here or here respectively.

Paycheck Fairness Act - Coming Soon?

dschwartz@pullcom.com (Daniel Schwartz) — Tue, 09 Feb 2010 03:47:06 GMT

As those who have been following my tweets know, I have been at the American Bar Association's House of Delegates and midyear meetings. There's lots of substance to these meetings and you can certainly follow along with the ABA Journal.

Among the topics discussed today, was the Paycheck Fairness Act now pending in Congress. If you are not familiar with it, you should be because by all accounts, it's moving front and center this year as an important piece of legislation for the Obama Administration and others. Rep. Rosa DeLauro of Connecticut is the primary sponsor of the bill in the House of Representatives.

John Phillips reported on this recently. As a result, employers should take stock of their compliance programs and certainly begin a review (if it is not done regularly) of your current compensation procedures.

What does the bill do? John has a good summary but some of the key changes would be to revise the remedies for sex discrimination in the payment of wages by permitting uncapped punitive and compensatory damages and limit employers’ ability to defend against EPA claims. The bill would also prohibit an employer from retaliating against an employee who inquires about, discusses, or discloses his/her own wage or that of another employee unless the disclosing employee has access to that wage information as part of his/her essential job function.

THE GREAT GENERITIVITY DEBATE

Tue, 09 Feb 2010 04:27:14 GMT

I want to call your attention to an interesting debate on the between Marc Freedman, founder of Civic Ventures, and David Brooks of The New York Times.

In a column published February 1, Brooks proposes reversing public policies that he says rob the young to serve the old and take from them funding, freedom and opportunity, saying, "It now seems clear that the only way the U.S. is going to avoid an economic crisis is if the oldsters take it upon themselves to arise and force change." He calls for a "generativity revolution" of millions of people demanding changes in health care spending and the retirement age to make life better for their grandchildren.

In a piece published today on The Huffington Post, Freedman says "the real generativity revolution is well under way. And with the help of smart new policies, this movement of forward-looking baby boomers might actually succeed." He writes, "It's increasingly clear that these older workers aren't competing with younger people; they are meeting demands for talent that will only grow as the economy recovers."

Freedman argues, "With 10,000 baby boomers turning 60 every day, it's time for public policies that honor their aspiration to leave the world a better place and harness their talent and energy for the long haul."

You can read David Brooks' column here:
http://www.nytimes.com/2010/02/02/opinion/02brooks.html
Marc Freedman's piece is here:
http://www.huffingtonpost.com/marc-freedman/generativity-revolution_b_447774.html

Comments from both points of view are welcome on Encore.org, as well as right here. Join the discussion at http://www.encore.org/news/marc-freedman

What are your thoughts? How do we prevent generational resentments and warfare?

2010 Works-In-Progress, October in Oregon

Tue, 09 Feb 2010 04:05:19 GMT

The University of Oregon School of Law is pleased to host this year’s installment of the ADR Works-in-Progress Conference. We’ll be gathering in Eugene, Oregon, October 15-16, 2010. Lots more information soon. (No, Andrea, no details yet on precisely which local wines we’ll be serving.) For now, please mark the dates on your calendars and plan to [...]

Are You Your Bloggers' Keeper? Ethics Issues & and Lawyers' Professional Obligations Related to Lawyers' Marketing Non-Legal Services on Line: An Interview with Brian Tannebaum, Miami Florida Criminal Defense &

Thu, 07 Jan 2010 13:58:08 GMT

Lately, the blogosphere has seemed like a dangerous place. Scott Greenfield warned of a pscycho on Twitter who was originally retained by an attorney to conduct her online marketing campaign. ERic Turkewitz alerts us to unseemly marketing tactics by Findlaw, like spamming blogs with comments and creating "shell" blogs designed to boost SEO and siphon traffic from legitimate and established blogs with similar topics. And Brian Cuban writes about lawyers and former lawyers who provide social media consulting in a deceptive or at least not entirely transparent manner.

As deception grows, however, so too has the phenomenon that Cuban describes as "policing" the blogosphere and that David Giacalone once described as characterized as e-shaming. To me, these dual developments -- lawyers (or law related companies) selling non-legal marketing products to lawyers and the subsequent rise of e-shaming raises lots of interesting questions, including:

1. What are the ethical obligations of lawyers who market non-legal services?

2. Is e-shaming or publicly warning others an appropriate response?

3. Do lawyers have an affirmative ethics obligation to report other lawyers who engage in deceptive practices in marketing non-legal services?

4. What about the problem of "false positives" - situations where a blogger criticizes another lawyer and turns out to be mistaken?

To help sort through these questions, I spoke with Brian Tannebaum, whose practice includes professional ethics issues and who has also been recognized for his role as a "Twitter cop". It's clear that Brian has given plenty of thought to these issues, and he offers thoughtful, even-handed guidance. This interview is a must-listen for lawyers who market social media and consulting services to other lawyers as well as for lawyers who are considering using these services. Once you've listened in, I'd love to hear your thoughts on these issues so please feel free to comment below.

Click here to access the recording of Carolyn Elefant's interview with Brian Tannebaum

Brian Tannebaum's ethics blog, My Law License.

Overconfidence

Tue, 09 Feb 2010 04:00:00 GMT

Overconfidence by experts resulting in disastrous decisions was the theme of a recent presentation by Malcolm Gladwell, and it has obvious implications for the insurance industry. He pointed to the crisis in the financial industry, Wall Street in particular, as the prime example of overconfident experts getting it wrong, and talked a bit about the demise of Bear Stearns. Gladwell used a number of other examples to support his thesis, including a study on the change in outcomes when experts...

In A Putative Class Action, The Third Circuit Holds That A Plaintiff Must Show Detrimental Reliance On Improper Loan Disclosure Statements To Obtain Actual Damages Under The Truth In Lending Act

Mon, 01 Feb 2010 15:18:06 GMT

By Shannon Petersen

On December 31, 2009, the Third Circuit held that a borrower must prove detrimental reliance to obtain actual damages for a violation of the federal Truth in Lending Act ("TILA"). See Vallies v. Sky Bank, ---F.3d---, 2009 WL 5154473 (3^rd Cir. 2009).

Under TILA, the federal government requires that lenders make certain disclosures to borrowers about the terms of their loans before lending them money. TILA claims are at the epicenter of the mortgage litigation crises. Over the past two years, TILA claims, including class action claims, have flooded the state and federal courts. Most of these claims involve allegations that some technical TILA disclosure violation has occurred.

Though not a mortgage case, the allegations of the borrower in Vallies v. Sky Bank are typical. The plaintiff alleged that the finance charge statement made by the bank for an auto loan was misleading in that it did not include $395 representing the amount of the debt cancellation insurance, which the plaintiff alleged should have been included in the finance charge statement under TILA. The district court granted summary judgment in favor of the bank because the borrower had failed to show that (1) he had read the TILA disclosure statement pertaining to finance charges, (2) he had understood the finance charges being disclosed, (3) had the disclosure been accurate by including an additional $395, he would have sought better terms or foregone the loan, and (4) if he had sought better terms, he would have obtained them.

The Third Circuit declined to state the specific facts or circumstances that constitute detrimental reliance under TILA, but affirmed the decision of the district court that detrimental reliance must be shown and had not been shown here. In so holding, the Third Circuit relied on the language of TILA itself, which provides for both actual damages and statutory damages. According to the Third Circuit, to obtain actual damages, a plaintiff must show causation by showing that he or she relied on a misleading or improper loan disclosure statement to his or her detriment. In contrast, to obtain statutory damages, a plaintiff must only show that a violation of TILA has occurred. (For class action suits, statutory damages under TILA are capped at the lesser of $500,000 or 1% of the defendant's net worth.).

In reaching its decision, the Third Circuit considered but rejected as irrelevant the concerns of some legal commentators, who have noted that under a detrimental reliance standard actual damages for TILA loan disclosure violations may be difficult to prove. The court also disregarded the fact that "detrimental reliance may create obstacles for class certification because of the individualized fact-specific nature of the reliance inquiry." The court distinguished other case law, holding that detrimental reliance under TILA is not necessary, on the grounds that those cases involved claims for statutory damages, not actual damages, under TILA.

Finally, the Third Circuit noted that it joined the holding of every other circuit court that has addressed the issue, including the First, Fifth, Sixth, Eighth, and Ninth Circuits. Citing United States v. Petroff-5 Kline, 557 F.3d 285, 297 (6^th Cir. 2009) (“[A]ctual damages require a showing of detrimental reliance.”); McDonald v. Checks-N-Advance, Inc. (In re Ferrell), 539 F.3d 1186, 1192 (9th Cir. 2008) (finding no valid basis to overturn the rule of In re Smith requiring a showing of detrimental reliance to establish actual damages); Gold Country Lenders v. Smith (In re Smith), 289 F.3d 1155, 1157 (9th Cir. 2002) (“Wejoin with other circuits and hold that in order to receive actual damages for a TILA violation . . . a borrower must establish detrimental reliance.”); Turner v. Beneficial Corp., 242 F.3d 1023, 1028 (11th Cir. 2001) (en banc) (“We hold that detrimental reliance is an element of a TILA claim for actual damages . . . .”); Perrone v. Gen. Motors Acceptance Corp., 232 F.3d 433, 434–40 (5th Cir. 2000) (holding that detrimental reliance is an element of a claim for actual damages); Peters v. Jim Lupient Oldsmobile Co., 220 F.3d 915, 917 (8th Cir. 2000)(requiring a showing of proximate causation and adopting a four-prong reliance test for establishing actual damages); Bizier v. Globe Fin. Servs., Inc., 654 F.2d 1, 4 (1st Cir. 1981) (noting in dicta the need to show causation for an award of actual damages “in addition to a threshold showing of a violation of a TILA requirement”).

Under this law, it is not enough, as plaintiffs in TILA cases often do, to allege that a TILA loan disclosure violation has occurred. Instead, a plaintiff must also allege and prove that he or she relied on the misleading or improper statement and as a result of this reliance suffered actual damage. This recent decision of the Third Circuit also emphasizes the difficulty of certifying a class action for actual damages under TILA. Even where the named plaintiff has detrimentally relied on an improper loan disclosure statement, such reliance can rarely be universally inferred for other, unnamed class members. Instead, to determining detrimental reliance usually requires an individual inquiry about whether the class member read the disclosure statement, understood it, and relied on it to his or her detriment. For this reason, such cases are very difficult to certify for class treatment. See, e.g., Stout v. J.D. Byrider, 228 F.3d 709, 718 (6th Cir. 2000) (affirming the denial of class certification based on the need for individualized assessment of whether “each putative class member relied upon false representations or failures to disclose” under TILA).

Why Do Federal Investigations Take So Long?

Tue, 09 Feb 2010 02:40:46 GMT

This week's first call from a potential client posed the question: Why do federal investigations take so long? Long is right! I am involved in a fraud case in federal court (potentially) that began nearly 5 years ago, and like that rabbit it just keeps going and going and going and - well you get it. Federal prosecutors are like great gift givers at Christmas. By the time you get their "package" it is so tightly "wrapped" (resulting from a long, thorough investigation) that you seldom have a chance to get to the goods in one piece. Those long, thorough investigations result in very thorough indictments, and complex trials in federal court.

Federal investigators have unlimited investigative resources when investigating federal crimes. They use wiretaps, surveillance, monitoring of computer and banking records, and they love informants. As a result, federal investigations frequently take months and years and seldom involve mistakes or sloppy work, unless those informants have gotten sloppy.

And let's not forget the darling of every federal prosecutor - conspiracy. In almost every federal criminal case you will find a conspiracy charge, to give the feds even greater investigative leverage. A charge of conspiracy changes the rules. That out of court statement made by your brother is suddenly admissible at trial because of the co-conspirator exception to the hearsay rule. Other defendants making plea bargains may claim you are guilty of crimes you did not commit or are only partially responsible for, based on hearsay and their motive to avoid a stiff sentence.

So what to do if facing a federal investigation? Here are my top three tips:

First - hunker down and be willing to endure. You can seldom change the course or scope of a federal investigation, whether you are suspected of some type of fraud or an obscure federal criminal tax violation. So settle in and hope to wait them out. It happens! Sometimes they find a bigger fish to follow and lose interest in your problems.

Second - get the best legal help you can afford. ONLY hire an experienced criminal defense lawyer who has spent time trying criminal cases in federal court. Ask him or her specifics about federal criminal trials and do not settle for someone who has never WON a federal criminal trial. You do not need a novice or a generalist - your life and liberty are on the line.

Federal criminal trials are different from state or local criminal prosecutions. They are more complex, they take longer to get to trial and you start at an investigative disadvantage because of the length of time the United States has taken to investigate before filing that criminal case.

Finally - do not talk about the case with others. There is no "frightened potential criminal defendant - old college room mate" privilege. There is that attorney - client privilege that allows us to hear the whole story in complete confidence so that we can give you reasoned advice. Real advice on what to do next.

And do not talk to the investigators. I suppose that is technically my fourth tip. But I mean it!

So hang in there and get ready for that long ride if the feds are after you. Start with these ideas, but if you need to talk to someone right now - pick up the phone and call your favorite lawyer.

Minnesota Snowmobile Accident Lawyer Warns of Snowmobiling Hazards

Sun, 07 Feb 2010 14:39:35 GMT

Come winter, thousands of Minnesotans take out their snowmobiles to take part in one of the most popular winter activities in the north. Unfortunately, the exhilaration of sledding along endless snow is often accompanied by serious accidents that can leave victims severely injured or dead. Most accidents are traced to defective snowmobiles, other snowmobile operators’ errors, or the operator’s own negligence.

A snowmobile accident can result in severe injuries. The high speeds that snowmobiles reach and the high force generated during an accident can cause severe damage. It’s important to consult with a Minnesota snowmobile accident lawyer after an injury. A lawyer can help you protect your rights when it comes to negotiating with your insurer and recover the compensation you deserve.

Some of the injuries in a snowmobile accident include broken bones and fractures, blunt force trauma injuries, spinal cord fractures, whiplash, head injuries, and brain injuries. These injuries can require extensive hospitalization, surgery, therapy and rehabilitation, as well as long term care.

Injuries in snowmobile accidents may cause long term health effects that must be taken into consideration when you file a claim. For instance, a head injury can result in loss in concentration, loss of memory, cognitive difficulties, difficulties in performing simply tasks, post traumatic stress disorder and other conditions that can have a major effect on a person’s quality of life. Failure to factor in these conditions can cause a victim financial difficulties in the future when these conditions require medical care.

Causes of snowmobile accidents include:

Defective design;
Operator error;
Unskilled or inexperienced operators;
Operation at high speeds;
Operation under the influence of alcohol or drugs;
Failure to plan a route; or
Distracted or inattentive operation

Have you or a loved one been injured because of a snowmobile accident? Contact a MN snowmobile accident lawyer with the Brown Law Office, P.A. We offer free consultations at your home, work, hospital or one of our six Twin Cities metro offices. Contact us by calling (612) 789-2100, or submit an inquiry through our online consultation form. We don’t charge a fee unless we obtain a settlement on your behalf.

I am Accused of Criminal Battery - What Should I Do Next? - California Penal Code Section 242

Tue, 09 Feb 2010 02:03:17 GMT

Anyone who has been charged with battery, under California Penal Code section 242, should be prepared to retain an experienced criminal defense law firm to represent him or her in court. An experienced criminal defense attorney will know how to examine all the circumstances surrounding a criminal battery case to secure the most favorable disposition of this criminal matter for the client.

Battery is commonly defined as willful use of force or violence directed at another person. Any physical touching can be considered a battery as long as a victim does not consent to it, or if he or she feels that the touching was offensive. You need to know that assault and battery, although commonly mistaken as having similar meanings, are actually two distinct criminal charges.

While battery requires a physical contact to be either harmful or offensive, assault is just an attempt to injure another person and bring about this offensive or harmful touching. For example, swinging a baseball bat at another person will be an assault as long as that person reasonably believes that you are just about to hit them. However, once the bat lands on any part of the victim’s body, a crime of assault turns into a crime of battery.

Defenses are available to a battery charge. The most common defense to the crime of battery is self-defense or defense of others. The key to both of these battery charge defenses in California is to show that a person reasonably believed that he or she was in imminent danger of suffering bodily injury, and the force used was reasonably necessary to defend against such danger.

At Wallin & Klarich, our criminal defense attorneys have over 30 years of experience defending those accused of criminal battery, and are prepared to handle every aspect of your case. Our attorneys will examine the circumstances of your battery case in order to provide you with the best possible defense in your case. Contact the experienced Southern California criminal defense attorneys at Wallin & Klarich today at 1-888-280-6839 and visit us on the web at www.wklaw.com. We will be there when you call.

Auto Accidents: Statute of Limitations

Tue, 09 Feb 2010 02:08:02 GMT

No matter how clearly the defendant is at fault nor how badly the plaintiff is injured, one factor that always looms ready to completely cutoff the plaintiff’s ability to recover for his or her loss is the statute of limitations. A statute of limitations is basically a statute that prescribes a certain time period (often called the limitations period) during which certain types of lawsuits can be brought or charges can be filed. In the personal injury context, this often depends on the cause of action and the type of damages claimed by the plaintiff. For example, actions for injury to the person must be commenced within one year after the cause of action accrues. In plain English, this means that if a plaintiff is injured by a defendant’s negligence in an automobile accident, that plaintiff has one year from the date of the accident to file a lawsuit. This rule is in place so that potential defendants do not get twenty years down the road and suddenly get slapped with a huge lawsuit from two decades ago. This also helps to keep the facts and evidence fresh in order to achieve the best resolution possible.

As noted above, the statute of limitations can differ depending on the type of claim pursued or the type of damages sought. For example, actions for damage to personal property are given a three year statute of limitations, which stands in stark contrast to actions for personal injury which have a period of limitations that is two years shorter. Finding and abiding by the correct statute of limitations can be frustrating, but failing to do so can cost a plaintiff the ability to recover for his case. A skilled attorney can take on the responsibility of making sure a plaintiff’s claim is brought within the limitations period or possibly even find an exception for a claim that will inevitably be filed too late.

Source: Hixon v. Highsmith, 147 F.Supp. 801 (E.D.Tenn. 1957).

Are lawyers of a Certain (or any) Age using social networking yet?

faithpincus@pincuscommunications.com (Faith Pincus) — Tue, 09 Feb 2010 02:13:04 GMT

Just last week a speaker at the American Continuing Legal Education Association's mid-year conference in Orlando stated that he thought attorneys over a "Certain Age" (capitals intended!) were not using social networking as a means of communication, networking or finding out about legal community events, such as continuing legal education programs.

What? Are you kidding me?

OK, I'm thinking to myself, I'm probably on the (much) lower end of his Certain Age scale (if I'm on it at all) so I probably don't count. So, just for fun, I took a casual poll (a very scientific casual poll, I promise) of my attorney friends via Twitter and Facebook and, go figure, they disagreed.

I know, skewed poll, they're using social networking.

Need to poll folks the old fashioned way, by email. But still, many of my friends who pipped up said they were of a Certain Age and they couldn't imagine business or personal life without social networking.

Where am I going with this?

On Friday Larry Bodine, of Law Marketing Blog, wrote in his blog about a Hubbard One survey of Managing Partners and General Counsel, announced at a Managing Partner Forum in Florida, and guess what they found? Yep, law firms, and attorneys, are not strangers to social networking:

Facebook Today

•          Firm Page

–      35% of top 20 American law firms have FB page

•          Firm Employee Groups

–      40% of top 20 American law firms have FB groups

–      60% of top 20 Fortune 500 firms have FB groups

•          Individual Profiles/Pages

–      0% of top 10 GC’s, 10 Managing Partners have public FB profiles

Unfortunately, no demographics are discussed, so it doesn't really prove or disprove the Certain Age theory. But it's an interesting enough survey to bear repeating.

What was most interesting was that Attorneys in law firms use LinkedIn far far more than General Counsel at corporations. I suppose the logical answer is that firm attorneys are more into networking, the means of getting new business. But still... is that all?

Based on the results, I'd say Facebook may rock the legal world, but Twitter has not yet made much of an impression, at least on General Counsel. Well, no kidding. If they're not checking linkedIn - an easy platform to figure out - they're certainly not going to tweet. Heck, I can barely keep up with Twitter!

Twitter Today

·         Clients tweeting? 0 of top 20 Fortune 500 General Counsels are tweeting

·         Law firm leaders tweeting? 0 of top 20 AmLaw Managing Partners are tweeting

·         Law firms tweeting? 5 of top 20 AmLaw firms are tweeting

Not surprisingly, blogs, have made significant inroads into the legal community:

Blogs Today

• ~45% of AmLaw 200 Blogging

And if you think of blogging as having extended conversations on the net, as Kevin O'Keefe describes, then attorneys of a Certain Age probably really are using social networking to connect with others. (unless they're all in the other 55%)

Enough social networking for the evening, if I don't leave soon I will be of a Certain Age before I stop! I'm off to feed the dogs.

Wrongful Death of an Unborn Child: Cause of Action Permitted for Viable Fetus Under Minnesota Law

Tue, 09 Feb 2010 01:14:46 GMT

When it comes to the wrongful death of an unborn child, laws vary from state to state. The wrongful death of an unborn child can include one of the following two situations:

The death of the fetus as well as the mother; and
The death of the fetus because of the negligence or wrongful act of another, yet mother survives.

The majority of states permit a cause of action in the case of a wrongful death of a fetus. However, many of these states also specify that the fetus should reach a particular developmental stage for a claim to be filed. While some states draw the line at birth, others specify that the fetus should be "viable." There are some states which draw the line at the stage of the pregnancy when the fetus becomes "quick" and the mother is able to feel the movement of the fetus within her.

The appellate courts have noted the following in favor of the fetal wrongful death claims:

Irrespective of the fact that the child was yet to born, the negligence and wrongful act of the defendant should not be ignored;
Death of a fetus is similar to the death of the baby who lived for only a few days; and
The term "child" or "person" used in the statute of limitations of the wrongful death act can also be applicable on a viable fetus.

According to the statute of limitations of the Minnesota Wrongful Death Act, a claim for the wrongful death of a fetus, or unborn child, may be pursued, provided the fetus was viable at the time of the injury or accident. The term "fetus" is used to refer to the developmental stage of the unborn child in which it is capable of sustaining life outside the womb with or without life support technologies. Since the fetal viability is possible only after 24 weeks, a wrongful death claim for an unborn child in Minnesota is possible only if the fetus is in its third trimester.

Questions about a wrongful death case involving an unborn child? Speak with a MN wrongful death attorney with the Brown Law Offices, P.A. Our attorneys have years of experience and will fight to obtain the justice you deserve. Contact us by calling (612) 789-2100 or use our online consultation form. We offer free consultations at any of our six Twin Cities metro offices or any other location that is convenient for you. There is no fee unless we win.

CO2 Effects Not So Nice? Use it Twice, Says Carbon Sciences

elane@luce.com. (Eric Lane) — Tue, 09 Feb 2010 01:35:35 GMT

Carbon Sciences is a Santa Barbara, California company that has developed a proprietary process to recycle carbon dioxide emissions into gasoline and other liquid fuels. The company breaks down CO2 and extracts the carbon atoms to make new hydrocarbon chains. According to its web site, Carbon Sciences’ process requires less energy and is more scalable than previous [...]

Carbon Sciences is a Santa Barbara, California company that has developed a proprietary process to recycle carbon dioxide emissions into gasoline and other liquid fuels.

The company breaks down CO2 and extracts the carbon atoms to make new hydrocarbon chains. According to its web site, Carbon Sciences’ process requires less energy and is more scalable than previous known techniques, which used expensive inorganic catalysts.

The key to the process is a multi-step biocatalysis that uses organic biocatalysts. The company’s biocatalytic method uses inexpensive, renewable biomolecules to catalyze certain chemical reactions required to transform CO2 and water into fuel molecules.

Through nano-engineering of the biocatalysts and efficient process design, Carbon Sciences can operate these catalysis steps on a large industrial scale. In particular, the company’s smart particle technology provides improved encapsulation of the enzymes that prolongs their effective lives and allows them to perform many reaction cycles.

The major components of the process are a CO2 Flue Gas Processor, a a Biocatalyst Unit, a Biocatalytic Reactor Matrix, a Filtration system and a conversion and polishing unit.

The Biocatalytic Reactor Matrix is the heart of the process. It is here, in a matrix of liquid reaction chambers, that the large quantities of biocatalysts perform the multi-stage breakdown of CO2 and transformation to hydrocarbons.

The company’s CEO, Byron Elton, told me that Carbon Sciences has filed four as yet unpublished patent applications directed to its CO2 recycling process. Elton expects the company to file 4-6 more new patent applications this year.

Carbon Sciences owns U.S. Patent Application Publication No. 2008/0277319 (’319 Application), entitled “Fine particle carbon dioxide transformation and sequestration.” According to Elton, the ‘319 Application covers the company’s initial forays into carbon capture and sequestration.

The ‘319 Application is directed to methods and systems for breaking down carbon dioxide into micron- or sub-micron-sized particles, classifying or separating out the particles of a desired size and reacting those particles to form mineral carbonates.

Carbon Sciences’ technology extends into several aspects of CO2 capture, sequestration and recycling, including advanced chemical processes that can use flue gas and brackish water to capture CO2 emissions and scrub it to yield pure CO2.

Because the market for gasoline and liquid fuels is likely to remain quite large for some time, Carbon Sciences’ recycling process provides an interim carbon mitigation option: use the CO2 molecule twice.

In A Putative Class Action, The Third Circuit Holds That A Plaintiff Must Show Detrimental Reliance On Improper Loan Disclosure Statements To Obtain Actual Damages Under The Truth In Lending Act

Mon, 01 Feb 2010 15:18:06 GMT

Of BRICs and PIGS

nospam@example.com (Jon Katz) — Mon, 08 Feb 2010 22:56:44 GMT

There is a significant amount of hand-wringing going on in the US that the Euro is fraying on the edges. Some pundits have even coined a rather derogatory acronym for Euro-countries in economic distress: the PIGS (Portugal, Italy or Ireland, Greece, Spain). The acronym bunches together four countries with very different backgrounds but one shared fact: they all face serious budget shortfalls.

The grouping of these countries, largely by investment banks, may simplify investment and policymaking decisions to an unfortunate level. Italy for one does not want to be part of the group, and the Italian bank UniCredit has waged an effective campaign to change the "I" in PIGS to Ireland. But Ireland too has begun to restore both consumer confidence and budget stability thanks to aggressive action by the central government. Commentators seem to keep the "I" because that is the crucial vowel that holds the acronym together.

Portugal, Spain, and Greece are also all facing very different challenges. Portugal has a sizable but manageable budget deficit, while Spain is struggling with a burst housing bubble a la Florida. Greece remains the real country of concern; but then again, Greece has roughly the same debt levels as Germany, so what is all the fuss about?

The classification overlooks the more important--and legally binding---organizations already in existence, namely the EU and the Eurozone. Talk of the dissolution of the Euro is premature but rampant: the New York Times has published no less than three articles on the subject in the last two days alone (here, here, and here). At the end of the day, policymakers in Europe and the US have to honestly ask themselves: is leaving the Euro really an option? The case of Iceland clearly demonstrates what happens to small countries with large debt obligations in tumultuous times and it is not pretty.

The discussion of categorization reminds me of the BRIC acronym held in high regard by investors prior to 2008. Brazil, Russia, India, and China were touted as the hallmarks of the developing world at the time, and investments in all four countries were seen to be equally appeasing. Two years, a war in Georgia, and a global economic crisis later, the BRICs no longer look so homogeneous. I suspect the same will soon be true for the PIGS.

How should we classify countries economically? Is there any value in grouping problem areas? Just as a reference, I did a quick look at state budgets in the US and found five states with budget deficits greater than 10% in 2009: Arizona, California, Nevada, New Jersey, Rhode Island. Do you think CARINN could catch?

Costa Victoria Passenger Goes Overboard During Excursion

Tue, 09 Feb 2010 01:17:48 GMT

A newspaper in Brazil reports that a passenger from Costa Cruises' Victoria cruise ship went overboard during an excursion while the cruise ship was off the coast of Brazil between Río de Janeiro and Sao Paulo.

Entitled "Una Turista Argentina Falleció Cerca de Río," the article reports that the passenger was from Argentina. She had taken an excursion boat with other passengers to go to a beach to snorkel and dive. The passenger went overboard during the trip, and her body was found hours later.

No information was provided to explain how the passenger went overboard. The passenger's name was not released. The article indicates that Brazilian authorities will be investigating and a report is expected in 90 days.

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Credits:

Costa Victoria Wikimedia Commons

U.S. bans truckers & bus drivers from texting while driving

Thu, 28 Jan 2010 00:57:47 GMT

I ran across this timely article in the Washington Post written by Ashley Halsey III on January 27, 2010. It speaks to the dangers arising from behaviors of truck and drivers.

On Tuesday, the federal government formally barred truckers and bus drivers from sending text messages while behind the wheel, putting its imprimatur on a prohibition embraced by many large trucking and transportation companies.

"We want the drivers of big rigs and buses and those who share the roads with them to be safe," said U.S. Transportation Secretary Ray LaHood. "This is an important safety step, and we will be taking more to eliminate the threat of distracted driving."

LaHood has made the effort to curtail driver distractions a centerpiece of his tenure as the nation's top transportation official. Some saw his announcement as a step that might ultimately fuel a push to ban cellphone use by all drivers.

LaHood's announcement followed a study released in July by Virginia Tech's Transportation Institute that found that when truckers text, they are 23 times as likely to be involved in a crash or close call.

Also Tuesday, a group of senators unveiled legislation that seeks to bar all texting while driving.

"This is a giant step forward for safety on our roads, but we must do more," Sen. Charles E. Schumer (D-N.Y.) said of LaHood's action. "We need the administration to support our ban, which does the same thing for cars and mass transit that they are now doing for trucks and buses."

Although both houses of Congress are considering bills restricting texting and 19 states have banned the practice, LaHood said that existing rules on truckers and bus drivers give him the authority to issue the prohibition. LaHood said drivers of commercial vehicles caught texting could be fined up to $2,750.

Enforcement of LaHood's ban is so problematic, however, that it might prove more symbolic than practical.

"The enforcement problem here is enormous," said Russ Rader of the Insurance Institute for Highway Safety. "It's not clear this is going to make any difference on the road in terms of crashes."

Last year, President Obama banned federal employees from texting while driving government vehicles and from texting in their own cars if they use government-issued phones or are on official business.

With LaHood leading the effort, supported by mounting evidence of the dangers, Adkins said that an effort to ban cellphone use by all drivers could be proposed this year.

"At some point, we'll have to address that issue," Adkins said. "We think 2010 will be the year when we do something about distracted driving. We can't remember a secretary ever taking the issue of highway safety so seriously."

In announcing the ban, LaHood mentioned data compiled last year by the Federal Motor Carrier Safety Administration. The agency said that texting drivers take their eyes off the road for an average of 4.6 out of every six seconds. At 55 mph, he said, that means a texting driver travels the length of a football field, including the end zones, without looking at the road.

I intend to monitor trucking issues, changes to safety monitoring and regulations as part of my interest in trucking law.

Best in Law Blogs : LexBlog Network : February 8, 2010

Tue, 09 Feb 2010 00:34:56 GMT

Well, I hope everyone enjoyed the Super Bowl; watching Peyton Manning channel his inner Favre was a bit surreal. Anyway, we had 129 posts on the LexBlog Network today with Jamie Spencer providing one of the more interesting posts, offering insight on cops, lawyers and judges using iPhone apps.

Keeping Stuff out of Trials: Dirty Tricks - Palm Coast lawyer Philip Chanfrau on his Palm Coast Injury Law Blog
Proving fault in a slip and fall case - Dallas attorney Bryan Fears of Fears Nachawati on the firm's Texas Injury Law Blog
The High Road to Labor Law Reform... - White Plains lawyer Tom Walsh of Jackson Lewis on the firm's EFCA & Labor Reform Blog
Sign Of The Times: iCop, iLawyer, iJudge - Texas attorney Jamie Spencer in his Austin Criminal Defense Lawyer Blog
Going "Undercover" to Determine How Corporate Policies Play Out in the Workplace - Fort Worth lawyer Russell Cawyer of Kelly Hart & Hallman on the firm's Texas Employment Law Update
Huge Snowfall Leads to Wave of Roof Collapses - Arlington attorney Timothy Hughes of Bean, Kinney & Korman on the firm's blog, Virginia Real Estate, Land Use & Construction Law
Attorney General Jim Hood Recovers $18.5 Million for Mississippi Following "Loss" in Zyprexa Litigation - Mississippi personal injury lawyer Philip Thomas on his MS Litigation Review & Commentary
Measuring the effect of social media - Boston attorney Dave Broadwin of Foley Hoag on the firm's Emerging Enterprise Center Blog
Problems At Trial: The Suddenly Unavailable Key Witness - Greensboro lawyer Mack Sperling of Brooks Pierce in his blog, the North Carolina Business Litigation Report
It Only Took 16 Years: New York Appellate Court Defines Standard for Judicial Dissolution of Limited Liability Companies - New York attorney Peter A. Mahler of Farrell Fritz in his New York Business Divorce Blog