Monday, April 28, 2014

The cost of inaction

Thinking about self-representation in civil actions and the cost of professional representation by a lawyer, a quick cost-benefit analysis suggests that self-representation is always recommended when the cost of professional legal representation is greater than the cost of doing nothing, but the cost of doing nothing is greater than the cost of doing something on your own, without a lawyer, even if it is wrong.

Is it ever a good idea for a defendant to allow a default judgment to be entered? I cannot think of one. There is a risk involved with asserting frivolous defenses for improper purposes, but there is usually always some legitimate defense to be offered at the cost of a few pieces of paper and a postage stamp. Even if the only defense available is to take issue with the rate of post-judgment interest imposed, it is better than doing nothing. It is better than a default judgment.

Appearing and defending an action keeps open the door to negotiation and settlement. It provides a certain extra amount of breathing room to review, research, verify and maybe even talk to a lawyer about the case. By appearing and defending, a defendant continues to receive pleadings and notices in the action, which are not required for a party in default.

This is not legal advice. This is practical advice. Never allow a default judgment.

Sunday, April 27, 2014

Saturday, April 26, 2014

Waffling on punitive damages

Every time I begin to think that punitive damages are a bad idea, something comes along to give me pause. Such is the situation with General Motor's ignition switch redesign in 2006. The redesign was a cost-cutting move at the expense of consumer safety, but that's not the part that irks me. GM's apparent internal conspiracy to conceal and deny the redesign for half a dozen years, or more, is what makes me think a smack down is well deserved. The best explanation I've seen is by attorney Steve Moskos, General Motor's Ignition Switch Nightmare.

Friday, April 25, 2014

Quis custodiet ipsos custodes?

The Center for Public Integrity reported today that the Koch brothers and major corporations are sponsoring a pension reform seminar for judges, with all expenses paid.
 "As state courts across the nation prepare to referee numerous public pension reform disputes, a gaggle of interested parties — from major corporations to the Koch brothers — will next week sponsor an expenses-paid conference on public pension reform for judges who may decide the cases’ fates. . . The “Judicial Symposium on the Economics and Law of Public Pension Reform,” according to a George Mason event description, is intended to “comprehensively outline the underlying structure of pension systems, address the differences between public and private pensions and detail the unfunded liabilities and potential bankruptcy issues arising from this crisis.” (Read more)
Surely, the code of judicial ethics has something to say about this. Yes? I imagine the list of attendees will be made public, one way or another.

University Medical Center v. Beglin, 2012-CA-001208-MR, April 25, 2014

University Medical Center v. Beglin, 2012-CA-001208-MR, April 25, 2014

Law of the case - Post-judgment interest

A medical malpractice judgment for liquidated damages, punitive damages and post-judgment interest at the statutory rate of 12% was reversed, in part, on appeal with respect to the issue of punitive damages. Although the defendant medical center had previously moved to reduce the post-judgment interest rate, the denial of that motion was not part of the first appeal.

When the judgment was amended on remand to satisfy the holding in the first appeal regarding punitive damages, defendant medical center again moved to reduce the post-judgment interest rate, which was again denied. The Court of Appeals held that the law-of-the-case doctrine precluded the consideration of the question in a subsequent appeal. 

The law-of-the-case doctrine is “an iron rule, universally recognized, that an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal however erroneous the opinion or decision may have been.". . . It is the mechanism by which matters once litigated and finally determined remain final. Its proper application is a question of law to be reviewed de novo. . . the doctrine perceives as settled “all errors lurking in the record on the first appeal which might have been, but were not expressly relied upon as error.”

The court distinguished this case from the unpublished opinion in Louisville-Jefferson County Metro Government v. Brooks, 2013 WL 645955 (2013).

NOTE TO KENTUCKY COURTS: Exclusive WestLaw cites are a big pain in the ass.

In Louisville-Jefferson County Metro Government v. Brooks, the interest rate issue had not been raised during any earlier phase of the proceedings. In this case, the issue had been ruled upon previously. I guess that's right. The same case was in the Court of Appeals four times, and it's a little hard to find. Bah!

After holding the rule-of-the-case doctrine precluded the consideration of the interest rate issue, the court considered it and opined/held/strongly suggested a trial court's prerogative to modify post-judgment interest under KRS 360.040 was within the realm of the court's sound discretion, and it was a pretty good enough decision to pass an abuse of discretion test.

Basically, the Court of Appeals said, it's a judgment and not a damn loan to be paid when they get around to it.

"Finally, University Hospital contends that the trial court miscalculated the interest due under the terms of its judgment. It contends that the trial court erroneously computed interest for the day on which the judgment was originally entered rather than concluding that interest began to accrue the following day and that it erroneously awarded additional interest in leap years contrary to the provisions of KRS 360.040. We disagree."

They were arguing about three days' worth of interest, or about $5225, or maybe one lawyer for three days.

The judgment, as amended, was affirmed.

SCOKY speaks - April - Last part

Staples v. Commonwealth, 2011-SC-000788-MR, April 17, 2014

"[T]he Commonwealth's theory that Staples had actual custody of the child and thus committed criminal abuse by allowing the child's mother to abuse the child is legally unsupported. Similarly, the Commonwealth's theory that Staples had a legal duty arising from his actual custody to prevent the child's mother from killing her and thus was complicit to manslaughter is legally unsound. Because the jury instructions included these theories, the convictions should be reversed."
Commonwealth v. Pollini, 2012-SC-000312-DG, April  17, 2014

Discretionary review of opinion reversing conviction. Appellee's failure to prove the prejudice component, "requires us to reinstate the trial court's denial of RCr 11.42 relief . . . a successful IAAC claim requires a showing of both deficient performance and prejudice[.]"

Young v. Commonwealth, 2012-SC-000491-MR, April 17, 2014

Conviction reversed because the omission of the mental-state element from a complicity instruction was palpable error.

Commonwealth v. Dulin, 2012-SC-000668-DG, April 17, 2014

A discretionary review of the Court of Appeals, reversing an opinion, "holding that KRS 533.040(2) did not extend the original expiration date of Appellee's, Derick Dulin, term of probation and, therefore, the Jefferson Circuit Court lost jurisdiction to revoke Dulin's probation when it purported to do so by an order entered in September 2008. The Court of Appeals concluded that the circuit court erred by denying Dulin's motion for post-judgment relief from the revocation order pursuant to CR 60.02 and RCr 10.26."

Thursday, April 24, 2014

The Form of a Kentucky Pleading: Basic [Kindle Edition] $0.99

The Form of a Kentucky Pleading: Basic
Amazon Kindle Edition - $0.99

Legal information how-to booklet for Kentucky civil pleadings. This covers the basics of formatting for the essential parts of Kentucky pleadings, motions and other court papers. From the type and size of paper required by the Kentucky Rules of Civil Procedure, to necessary margins, case captions, signatures and proof of service, this show you what a Kentucky civil pleading should look like and how the different parts are arranged.

Or, as in PDF file format for $1.99 from

Civil self-representation in Kentucky

There appears to be no serious doubt that civil litigants have a right to represent themselves in Kentucky courts without the assistance of an attorney.
" A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law."
Rules of the Supreme Court, SCR 4.300(B)(7), Kentucky Code of Judicial Conduct, Canon 3(B)(7)

"We are unaware of any U.S. Constitutional decision that declares citizens to have a right to self-representation in civil proceedings. Yet, arguing against such a right is nearly frivolous . . . In light of the historically "high standing" accorded to a party's right to plead and conduct one's own case, we agree that the trial judge abused his discretion in ordering Lattanzio to proceed with his litigation only under the supervision of an attorney. Such an extreme remedy was simply not reasonable, especially in light of the fact that no alternative sanctions were attempted prior to the entry of the trial court's February 27, 2009, order that barred Lattanzio from self-representation."
Lattanzio v. Joyce, 308 SW 3d 723 (Ky. App. 2010)

Pro se litigants must follow the Kentucky Rules of Civil Procedure. McBrearty v.Community and Technical College System, 262 S.W.3d 205, 210 (Ky.App.2008)

Encouraged against the sua sponte dismissal of complaints, in part, because such a practice is "particularly prejudicial to pro se plaintiffs, who are generally unskilled in the art of pleading." Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App.1987)

Federal cases

Prisoner's pro se civil complaint was held to a less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)

"We start with the proposition that the right to self-representation in civil cases conferred by § 35 of the Judiciary Act of 1789, although not enjoying the constitutional protection subsequently afforded to the right of self-representation in criminal cases, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), is a right of high standing, not simply a practice to be honored or dishonored by a court depending on its assessment of the desiderata of a particular case. As the Court said in Faretta, supra, 422 U.S. at 830 n. 39, 95 S.Ct. at 2538 n. 39: 'The Founders believed that self-representation was a basic right of a free people.' "
O'Reilly v. New York Times Co., 692 F.2d 863, 867 (2nd Cir.1982)  However, the right to self-representation is a qualified right. It must be timely asserted.


Wednesday, April 23, 2014

SCOKY speaks - April - part III

Kirby v. Lexington Theological Seminary, 2012-SC-000519-DG, April 17, 2014
Court of Appeals: 2010-CA-001798-MR

Kant v. Lexington Theological Seminary, 2012-SC-000502-DG, April 17, 2014
Court of Appeals: 2011-CA-000004-MR

There are two similar cases decided in tandem, because of their timing and common issues. Both plaintiffs were tenured professors at the Lexington Theological Seminary and both were terminated from employment during a cost-cutting restructuring of the seminary made necessary by external economic conditions. Each of the plaintiffs sued separately. Both plaintiff-appellants Kant and Kirby claimed breach of contract. One difference between the two cases is that Kirby also claimed race-based discrimination in his action (KRS 344.040). The Circuit Court in each action granted summary judgment for defendant seminary. The Court of Appeals affirmed the dismissal of each action based upon the  the ecclesiastical abstention doctrine and the ministerial exception.

On discretionary review, the Kentucky Supreme Court reversed the two cases and remanded each to the Circuit Court for further proceedings. Relying upon Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012), the court explicitly adopted the ministerial exception as applicable to employment claims, "especially discrimination claims . . . asserted against a religious institutional employer by an employee who is directly involved in promulgating and espousing the tenets of the employer's faith." The court distinguished between the purely internal disputes that sometimes erupt in religious organizations and those more secular disputes that may arise as a religious organization does business in the world.

"Secular courts do not have jurisdiction to hear disputes over church doctrine. But courts do have jurisdiction to hear and resolve employment disputes, contract claims, tort claims, or similar. And that authority is not lost as a result of the ministerial exception."

Ministerial employees do have a special status as the public face of a religious institution's internal religious beliefs and organizational purpose. The court stated, "the ministeria1 exception is a judicially created 'principle whereby the secular courts have no competence to review the employment related claims of ministers against their employing faith communities.' . . . The Constitution demands recognition of the ministerial exception, so we now incorporate the ministerial exception into our jurisprudence."

The ministerial exception is an affirmative defense that must be pleaded and proved. it is not a jurisdictional bar to the action. This means, of course, that the exception may be waived through intention or inaction.

"We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is 'whether the allegations the plaintiff makes entitle him to relief,' not whether the court has power to hear [the] case."
"Our case law has long held that 'whether a particular defendant is protected by official immunity is a question of law[.]' Accordingly, we hold the determination of whether an employee of a religious institution is a ministerial employee is a question of law for the trial court, to be handled as a threshold matter. Certainly, it is important "that these questions be framed as legal questions and resolved expeditiously at the beginning of litigation to minimize the possibility of constitutional injury" and provide the litigants with a clear understanding of the litigation's track. The religious institution asserting the ministerial exception must bear the burden of proof to show the employee was, indeed, a minister."

The application of the ministerial exception requires two main inquiries:

1) is the employer a religious institution, and
2) is the employee a minister.

Clearly, each of these involve factual determinations. Although framed as legal questions, any substantial conflict in the evidence on the issues of the institution being "religious" or the employee being a "minister" may seriously impair the court's ability to expeditiously resolve the matter short of trial.

"[T]he scope of 'religious institution' is not so narrow that only traditional faith communities qualify. Across the federal circuits, the ministerial exception has been applied to religiously affiliated hospitals, schools, and corporations because they were sufficiently within the understanding of "religious institution." An entity, allegedly religiously affiliated, will be considered a 'religious institution" for purposes of the ministerial exception "whenever that entity's mission is marked by clear or obvious religious characteristics.' "

There are numerous factors to be considered in determining the religious status of the institution, including its funding sources, its bylaws and governing structure, if officers and directors are personally affiliated with a particular religious movement and the primary activity or organizational purpose of the institution, just to name a few.

Also, regarding the ministerial status of an employee, the court stated, "We are loath to adopt a categorical rule regarding Seminary professors or any other class of individuals who may be considered ministers under the ministerial exception. And, like the United States Supreme Court, we do not adopt a 'rigid formula' for deciding if an employee is a minister."

In Hosanna-Tabor, supra, the U. S. Supreme Court offered four generic factors to consider when determining a ministerial employee:

(1) the formal title given by the religious institution,
(2) the substance reflected in that title,
(3) her own use of the title, and
(4) the important religious functions performed for the religious institution.

The Kentucky Supreme Court elaborated upon this.

"When considering 'the formal title given,' a trial court should weigh whether the title is inherently, exclusively, or primarily religious. The consideration of the 'substance reflected in the title' should include the duties and responsibilities associated with the title. The trial court, in looking to the associated duties and responsibilities, may look at whether they carried substantial religious significance, involved supervision or participation in religious ritual and worship, or spread the tenets or doctrine of the faith.'[The employee's] own use of the title' should include consideration of whether the position involved, expected, or required proselytizing on behalf of the religious institution. Or did the employee use the title in a manner that would indicate to the members of the particular faith community or to the public that he was a representative of the religious institution authorized to speak on church doctrine? Finally, consideration of 'the important functions performed for the religious institution' should involve a review of whether those functions were essentially liturgical, closely related to the doctrine of the religious institution, resulted in a personification of the religious institution's beliefs, or were performed in the presence of the faith community."

"According to the court in McClure v. Salvation Army,[460 F.2d 553 (5th Cir. 1972).] the 'relationship between an organized church and its ministers is its lifeblood' because the minister 'is the chief instrument by which the church seeks to fulfill its purpose.' And 'law should not be construed to govern the relationship of a church and its ministers.' . . . Although ministerial it is in name, the exception, as McClure illustrates,has been applied to lay employees, seminary professors, hospital workers, musicians, and many others."

"[B]oth the Free Exercise and Establishment Clauses of the First Amendment. . . bar the government from interfering with the decision of a religious group to fire one of its ministers. . . the reasoning behind the church's decision is essentially irrelevant under the ministerial exception."

"The existence of the ministerial exception is not purposed on the protection of a 'church's decision to fire a minister only when it is made for a religious reason' but,  instead, to 'ensure[] that the authority to select and control who will minister to the faithful . . . is the church's alone.' "

"we do not hold the ministerial exception to operate as a bar to Kirby's contract claims against the Seminary. The contract claims involve solely the Seminary's willing participation, within a religious context, in a contractual transaction between the two parties."

Standard of review

"Summary judgment is only to be granted 'to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.' "

"Sumary judgment is not intended as a substitute for trial and should be cautiously applied. Instead of deciding an issue of fact, the trial court reviews the evidence to determine whether a real issue of fact exists. And in performing this review, the trial court must view the evidence through a lens colored in favor of the party opposing summary judgment."

"Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists.  Consequently, we ned not defer to determinations by the lower courts and we are free to operate under a de novo standard of review."

Tuesday, April 22, 2014

Politicization of criminal defense

One of the downsides for a criminal defense practice is that a lot of your clients are . . . well . . . criminals. It's not an easy job, being a criminal defense lawyer, but it is a noble and necessary  undertaking deserving of public respect.

It annoys the hell  out of me when politicians demean criminal defense for purely partisan political purposes. That is exactly what the Republican Governors Association did in this video ad excoriating the Democratic governor candidate in South Carolina, Vincent Sheheen, for being a criminal defense lawyer. I don't know anything about Sheheen and I don't give a damn about South Carolina politics, but this annoys me. 

Sheheen is "trial lawyer" who "made money off criminals" and "got a sex offender out of jail time."

The public is not well served by these tactics, and the RGA should be ashamed.

Monday, April 21, 2014

Kentucky inmate starves to death

Associated Press has reported today that the death of James Kenneth Embry, 57, while an inmate at the Kentucky State Penitentiary in Eddyville in January, 2014, resulted from self-starvation.
LOUISVILLE, Ky. (AP) — A prison doctor has been fired and two other staffers are in the midst of being dismissed after an inmate at the Kentucky State Penitentiary starved himself to death, a case that has exposed lapses in medical treatment and in how hunger strikes are handled at the facility. Prison officials have asked prosecutors to investigate after The Associated Press began asking questions about the inmate's death. (read more)

SCOKY speaks - April - Part II

 Three civil appeals rendered April 17, 2014

Linden v. Griffen, 2011-SC-000422-DG, April 17, 2014

Court of Appeals     2009-CA-000970-MR Unpublished

Arbitration and appeal

Business members of a LLC had a falling out over management and various symptoms of mutual back-stabbing erupted, resulting in litigation alleging fraud, defamation, abuse of process, breach of fiduciary duties, Blue Sky violations, mutual mistake, and/or unilateral mistake coupled with fraud in the inducement. A written agreement provided for arbitration and the Circuit Court stayed the proceeding, except for the claims of defamation and abuse of process, and compelled arbitration on the other issues. Defendants appealed the portion of the stay order that denied arbitration to some issues, under KRS 417.220(1)(a). After the Defendant's notice of appeal was filed, the Circuit Court amend the arbitration order by adding a CR 54.02 certificate of finality, whereupon Plaintiff appealed the grant of arbitration.

Although the arbitration agreement itself was inserted in an amended member agreement the validity of which Plaintiff contested, it was not an issue on appeal. Kentucky law makes if fairly clear that contesting the validity of an arbitration agreement is not a sure-fire way to avoid arbitration. The trial court is authorized to make short work of the issue. Presumably, and I'm just guessing, the validity of the arbitration agreement can be contested in the arbitration itself.
"If the party disputes the existence of said arbitration agreement, the Court may render summary findings on that issue. If an agreement is found to exist, the Court then shall order the parties to arbitrate." Fayette County Farm Bureau v. Martin, 758 S.W.2d 713, 713-14 (Ky.App. 1988)

KRS 417.220(1)(a) allows immediate appeal only for the denial of a motion to compel arbitration, but not for an order that grants compelling arbitration. The Supreme Court held that the Circuit Court lacked jurisdiction to am mend the arbitration order after a notice of appeal had been filed and, anyway, in Commonwealth ex rel. Stumbo v. Philip Morris, USA, 244 S.W.3d 116, 120 (Ky. App. 2007), the Court of Appeals ruled that an interlocutory order compelling arbitration is not certifiable under Civil Rule 54.02.

The court then carefully examine the parties' written agreement to see if it contained any indication the defamation and abuse of process claims should also have been subject to arbitration.

Held: "[W]e agree with the trial court and the Court of Appeals that [Plaintiff's] defamation and abuse of process claims fall outside the scope of the parties' agreement to arbitrate."

"Arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration."

"Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration."

- ooOoo -

Marson v. Thompson, 438 SW 3d 292 (Ky. 2014)

Court of Appeals 2010-CA-002319-MR Unpublished

Qualified immunity for government employees - ministerial duty vs. discretionary duty

This case involved a accidental personal injury to a twelve year-old middle school student. The student fell off of an improperly extended bleacher in the school gym during normal school hours and routine daily activity. The defendants were sued individually for negligence. The defendants claimed a qualified immunity, which was denied by the Circuit Court and affirmed by the Court of Appeals.

Although the task of extending the bleachers properly was routine and ministerial, and thus as such not a task qualifying for individual immunity, the question remained which of the school's employees had been assigned this ministerial duty. The Supreme Court's analysis of the facts indicated that none of the named defendants had the primary duty of properly extending the bleachers. That job routinely had been assigned to the school's custodial staff, who were not named as defendants. The court determined that two of the three defendants had general supervisory discretionary duties regarding the bleachers and this brought them within the qualified immunity. The remaining defendant had a more direct supervisory duty, of actually entering the gym for a safety inspection, which was ministerial in nature. For this defendant,the qualified immunity did not apply,

Justice Noble's scholarly opinion is quite well written and I will not attempt to summarize her excellent analysis. It is worth reading in its entirety.

- ooOoo -

Fraser v. Miller, 2012-SC-000829-DG, April 17, 2014

COA     2011-CA-000884-MR Published
Google Scholar Link to COA opinion

Medical ma;practice - Rebuttal and Informed consent

A jury trial for medical negligence ended with a verdict in favor of the defendant. On appeal, Plaintiff argued that the trial court abused its discretion by not allowing him to present expert testimony in rebuttal to respond to a juror's question, and that the trial court committed reversible error by ruling that Plaintiff was not entitled to present to the jury his claim for failure to obtain informed consent on the basis that such claims only arise out of surgical procedures.

The sixteen year-old plaintiff was diagnosed by Defendant as suffering with gastritis. Plaintiff's symptoms of nausea, vomiting and headache were treated by, among other things, an injection of a non-steroidal anti-inflammatory. Plaintiff's symptoms had not abated by the next day when he returned to the same immediate care clinic where he was seen by a different doctor who referred Plaintiff to the emergency room. Ultimately Plaintiff was diagnosed with pancreatitis and cortical necrosis, an irreversible form of kidney failure. Plaintiff claimed that the cortical necrosis was caused by the injected anti-inflammatory prescribed by Defendant. It is not clear if Defendant personally administered the injection.

A day after Plaintiff's medical expert testified during Plaintiffs case in chief and then left town, a juror approached the bench with a question. Plaintiff proposed to depose the medical expert by telephone and present the deposition as rebuttal evidence. The Circuit Court rejected the suggestion and Plaintiff presented the issue on appeal. The court placed the decision within the realm of the trial court's discretion, finding no abuse thereof.

"It is within the sound discretion of the trial court to regulate the order of presentation of proof during a trial."

"The test to determine if the trial court abused its discretion is to ask whether its decision was 'arbitrary, unreasonable, unfair, or unsupported by sound legal principles.' "

"Rebuttal evidence is evidence that 'tends to counteract or overcome the legal effect of the evidence for the other side.' "

"Furthermore, '[r]ebuttal testimony offered by the plaintiff should rebut the testimony brought out by the defendant and should consist of nothing which could have been offered in chief.' "

"To seek answers to questions posed by jurors after a witness has been discharged invites confusion and chaos. Also, while we see value in jurors being allowed to ask questions at trial, such inquiries must be timely. Trial courts allowing such a practice should admonish the jury at the beginning of the trial that any questions for a witness must be posed while the witness is still on the stand."

Plaintiff had made the claim Defendant negligently failed to obtain his informed consent for the use of the non-steroidal anti-inflammatory injection.

"The trial court agreed with Dr. Fraser that Kentucky law does not allow for a separate informed consent claim based on the administration of a therapeutic drug. The trial court also found that Miller had failed to present expert testimony that Dr. Fraser deviated from the standard of care by not obtaining Miller's informed consent. For those reasons, the trial court ruled that Miller could not present to the jury his informed consent claim." The Circuit Court overruled Defendant's motion for a directed verdict on the informed consent claim (?), but Plaintiff failed to tender a proposed jury instruction on the issue.

The Supreme Court stated, "Whether an informed consent claim can be based on the administration of a therapeutic drug is a novel question," but ruled that the issue had not been properly preserved for appeal.

Comment: The standard rubric requiring consent, in general, for medical procedures such as surgery is that any harmful or offensive bodily contact in the absence of consent amounts to a common law battery. KRS 304.40-320 defines what satisfies the giving of informed consent, or, " the claimant's informed consent shall be deemed to have been given," in the enumerated conditions, but it does not inform as to when "informed consent," as opposed to mere consent, is required. The distinction between surgical procedures and therapeutic treatments does not make a lot of sense. Some therapeutic treatments are extremely high risk, and should be undertaken only with a high level of "informed consent." Removing a splinter or lancing a boil involve "touching," with the remote possibility of horrible complications with enough bad luck. The question is not whether the doctor satisfied accepted medical standards for obtaining informed consent, the question is if  the doctor satisfied accepted medical standards for the treatment of gastritis made in ignorance of other underlying complications. If the doctor's ignorance of the other underlying complications was not negligent, then a failure to warn of risks connected to the treatment, or surgery, and the unknown conditions cannot be negligence.

In short, there is a duty to obtain "informed consent" for known risks only if there is a duty to warn of known risks, which can happen only if the risks are known. In my opinion, the focus should shift away from discussing a duty to obtain informed consent as a primary consideration, and to focus instead upon a more meaningful duty to warn. A duty to obtain informed  consent flows from a duty to warn.

Assorted law blog roundup - April

Abell's Kentucky Law Blog

As a Matter of Justice Is "What's Finished" Better Than "What's Right"?
"Third Branch is duty-bound never to acknowledge instances in which law’s interest in finality must give way to competing values rooted in our shared abhorrence of manifest injustice."

Civil Litigation Blog

SCOKY Retreats Further From Open And Obvious Hazard Doctrine In Premises Cases
"Generally in these cases, if an appellate court finds that a motion for summary judgment was well grounded, the appellate court notes that the burden shifts to the plaintiff, and then considers whether the plaintiff had an adequte opportunity for discovery before the trial court granted summary judgment."

DelCotto Law Group Blog

Using Bankruptcy to Remove a Second Mortgage

If your home is under water, financially speaking, you might be able to resolve a second mortgage for pennies on the dollar through a Chapter 13 bankruptcy . . . if you know what you;re doing.

Employment Essentials - Labor and Employment Law Blog

Don't Withhold Final Pay if Your Employee Leaves with Your Property
"Employers are often understandably flummoxed about what to do when an employee’s employment ends while the employee still has custody of the employer’s property. For example, an employee may wear his or her employer-provided uniform home at the end of the employee’s final shift. What’s the employer to do?"

Gray & White Law's Louisville Personal Injury Blog

Which Surgery Patients Are Likely to Vomit After Anesthesia?

What can I say? The significance of vomit for the law.

Hurst & Hurst Law Blog

Alternatives To Bankruptcy
"Debtors should be aware that there are several alternatives to Chapter 7 bankruptcy relief."

Kentucky Bankruptcy Law

It is getting downright expensive to file bankruptcy

Bankruptcy filing fees go up effective June 1, 2014.

Kentucky Business and Corporate Law Blog

Lost & Found: How Business Owners Should Handle Unclaimed Property
"Any holder of unclaimed property (a "holder" is any business entity with two or more individuals doing business in Kentucky) is required, by state regulations, to report all unclaimed property, no matter how small (with an exception for wages less than $50), to the Kentucky State Treasury."

Kentucky Journal of Equine, Agriculture and Natural Resources Law

A Horse Owner’s Tax Checklist
" . . . . horse owners must be cautious if they are attempting to deduct business expenses related to their horse activity. Section 183(a) of the Internal Revenue Code states, “[i]n the case of an activity engaged in by an individual or an S corporation, if such activity is not engaged in for profit, no deduction attributable to such activity shall be allowed under this chapter except . . . . "

Kentucky Law Journal Online

The Secret Right to Hybrid Representation
"Unlike its federal counterpart the Kentucky Constitution entitles defendants to hybrid representation, a limited waiver of counsel in which the defendant acts as co-counsel with a licensed attorney."

Lexington Bankruptcy Law Blog

Debtors: don't let bankruptcy misconceptions give you pause
"One of the biggest concerns debtors have regarding bankruptcy, is that filing will do irreparable harm to their financial life. The reality is that this is not true. In fact, filing for bankruptcy can actually have an immediately positive impact on one’s credit in some cases."

The Dirt - Real Estate Law

When dealing with railroad easements, timing is everything
"Congress has enacted several laws relating to railroads, dealing with issues from the creation of the intercontinental system to the conversion of abandoned rail lines into trails. The recent Supreme Court case Marvin M. Brandt Revocable Trust v. United States presents the question of what happens to a railroad company’s right of way granted under one of these laws, the General Railroad Right-of-Way Act of 1875. The issue presented was: when the railroad company abandons its line: does it go to the United States or to the private party who bought the land underlying the right of way?"

SCOKY speaks - April - Part I

The Supreme Court of Kentucky issued twelve published opinions on April 17, and there is a lot of meat on that bone. More meat than I can chew in one meal. This is the first installment.

Three criminal appeals.

Minks v. Commonwealth, 2012-SC-000316-MR, April 17, 2014

Criminal search and seizure - Search warrant probable cause - Judicial ethics & disqualification

1. Held: Judge's participation in probable cause determination to issue search warrant, determination of probable cause and issuance of search warrant does not, per se, disqualify same judge from conducting suppression hearing on evidence discovered upon execution of the search warrant on Due Process fundamental fairness grounds. Abuse of discretion is the standard of review for Circuit Court judge's overruling Defendant's motion to transfer case and refusal to recuse.

Standard of review:

"The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."

2, The issue of an ethical appearance of impropriety for one judge to determine probable cause for search warrant and also to conduct suppression hearing in the same case is a question of first impression in Kentucky.

Held: "[W]e decline to adopt a rule that any judge must automatically recuse from hearing a challenge to a search warrant which he or she issued. As in other contexts, pursuant to statute and our rules governing judicial ethics, there must be evidence drawing the judge's impartiality into question before an appellate court will find abuse of discretion in the judge's refusal to recuse."

3. Did the affidavit presented support probable cause for the issuance of a search warrant?

a. Appellee's suppression motion did not allege that the deputy who procured the warrant purposefully or recklessly included false statements in, or omitted material facts from, his affidavit. An evidentiary hearing on a motion to suppress may not be necessary when the issue hinges upon only the information contained within the affidavit itself. The fact that the Circuit Court conducted an evidentiary hearing that elicited additional information in support of probable cause, which was not contained within the affidavit, is irrelevant.

"[A]n evidentiary hearing often is not necessary [to rule on a motion to suppress] when a search is based on a warrant, the exception being where the defendant alleges that the issuing judge was presented with an affidavit containing false statements or omitting material facts."

b. The lack of an assertion in the affidavit concerning the reliability of the informants simply factors into the totality of the circumstances assessment. The fact the affidavit in support of search warrant did not contain recitations as to a confidential informant's reliability and basis of knowledge was not conclusive on the question of whether warrant was issued without probable cause.

Note: Well, it seems the defendant did allege the omission of a material fact after all.

"When faced with a motion to suppress, a trial court judge must 'determine whether under the totality of the circumstances presented within the four corners of the affidavit, a warrant-issuing judge had a substantial basis for concluding that probable cause existed.' "

"It is well established that '[s]earch warrants must be supported by probable cause to satisfy the dictates of the Fourth Amendment.' "

"[P]robable cause is a 'practical, commonsense decision' that given all the circumstances set forth in the affidavit" there is 'a fair probability that contraband or evidence of a crime will be found in a particular place.' "

"It is the duty of the judicial officer to issue or deny the warrant based solely on the facts contained within the four corners of the affidavit."

c. That the affiant-officer personally observed marijuana on the premises and included that fact as support for probable cause, in addition to information from a confidential informant, it did not preclude the search for and seizure of methamphetamine production evidence. The search warrant, as requested and as issued, was not limited to a search for any particular controlled substance. 

Standard of review:

"When reviewing a suppression hearing ruling regarding a search pursuant to a warrant, appellate courts must first determine if the facts found by the trial judge are supported by substantial evidence, (in those cases where an evidentiary hearing was necessary) and then determine whether the trial judge correctly held that the issuing judge did or did not have a substantial basis for concluding that probable cause existed."

- ooOoo -

Kavanaugh v. Commonwealth, 2012-SC-000820-DG, April 17, 2014
Court of Appeals: 2012-CA-000185-MR (Unpublished)

Criminal search and seizure - Stop and frisk

During a "Terry" stop and frisk with doubtful justification, the Appellant assaulted the police officer which triggered Appellant's arrest and full search. Crack cocain was located on Appellant's person. Appellant moved to surpress the evidence based upon the illegality of the initial stop and frisk.

Held: "The search of Kavanaugh's person that yielded the cocaine occurred after the arrest, not during the Terry frisk. Therefore, the contraband was obtained from a valid search incident to a valid arrest. . . We conclude that Kavanaugh's assault of Officer Rice constituted an intervening act that purged the taint, if any, that resulted from any detention which may have violated the Fourth Amendment."

Standard of review:

"Our standard of review of the trial court's denial of a suppression motion is twofold. First, the trial court's findings of fact are conclusive if they are supported by substantial evidence; and second, the trial court's legal conclusions are reviewed de novo."

Stop and frisk

"An 'officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond'[cite omitted] Whether a Terry detainee is required, to provide identification to an officer is determined by state law."

"[a] state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions . . . in states without such laws, 'a suspect may decline to identify himself without penalty.'"

"[T]he Commonwealth of Kentucky is not a 'stop and identify' jursdiction. Therefore, absent a statute requiring disclosure, Kavanaugh could not have been arrested and prosecuted for failure to provide identification. However, since an officer is constitutionally permitted to request identification, any failure to comply may still be considered along with other sufficient factors demonstrating reasonable suspicion."

"It is well-settled that '[t]here is no right to use self-defense during an arrest.' "

- ooOoo -

Commonwealth v. Goss, 2011-SC-000780-DG, April 17, 2014
COA 2010-CA-000298-MR (Unpublished)

Identity theft - Mutually exclusive crimes - Sufficiency of evidence.

Goss's conviction for identity theft was reversed on two grounds. First, fraudulently obtaining a checking account was combined with fraudulently obtaining credit cards in a single count, and these two aspects were not differentiated in the jury instructions. However, Goss was charged with violating KRS 514.160, identity theft, which specifically excludes credit card fraud.

"Goss, however, cannot be prosecuted for identity theft under KRS 514.160 for obtaining the credit cards because the statute expressly precludes it. The entire statute is subject to KRS 514.160(4), which states: 'This section does not apply to credit or debit card fraud under KRS 434.550 to 434.730.' KRS 434.550 to 434.730 is the Credit and Debit Card Crime Act." 

Second, the evidence was insufficient. The evidence consisted of testimony that Goss had access to another's Social Security number and that fraudulent accounts were addressed to Goss's former residence. This simply was not enough. Also, although not given any significance by the court, the victim of the fraud was an ex-husband.

Personal cynical suspicions: My mind runs to the possibility of a reverse-whammy, or fraudulent set-up, by the ex. I think I'd like to more convincingly eliminate that twist before sending anyone to jail.

Saturday, April 19, 2014

A slow week at the Kentucky Court of Appeals

It wasn't really a slow week, but of the Court of Appeals' fourteen opinions released on Friday, thirteen were unpublished and only one was published. Wilson v. Haney, 2012-CA-001790-MR, April 18, 2014, (Link to PDF) is an inmate declaratory judgment appeal from the Lyon Circuit Court. The judgment was affirmed. Kentucky declaratory judgment procedures are interesting, but stupid inmate tricks are not. The scheme was to smuggle prescription pills to an inmate by including them in a mail package containing legal documents purportedly sent from an attorney who did not represent, and had not ever represented, the inmate. It didn't work.The inmate was disciplined.

The inmate felt aggrieved because no evidence linked him directly to the scheme. Given the choice between an anonymous unsolicited and unexpected gift of thirty Suboxone pills hidden in mail disguised to look  like it was from the inmate's lawyer and an inference based upon circumstantial evidence the inmate had a sufficient culpable participation in the fraud, the Circuit Court ran with the latter. The Court of Appeals was not willing to impose a contrary interpretation of the evidence.  

One moderately interesting point in this appeal was the inmate's argument that the disciplinary Adjustment Officer Appellees filed their answer to the complaint for declaratory judgment late and without first obtaining leave of court upon a showing of excusable neglect. Appellant relied upon Puryear v. City of Greenville, 432 SW 2d 437 (Ky. App. 1968) for the proposition that a showing of excusable neglect was a condition precedent for a late filing and it was error to deny a motion to strike and enter a default judgment. Puryear might not have been the best case for this purpose since on appeal the court held the objection to have been waived by agreement, but the point was made.

The court in Wilson, supra, cited Knight v. Sale, 257 S.W.2d 889, 891 (Ky. 1953) and Board of Education of Berea v. Muncy, 239 S.W.2d 471, 473 (Ky. 1951) for the proposition that "in declaratory actions, strict rules of pleading are not followed." Likewise, these two cases may not have been the best precedents to rely upon since they each predate Civil Rule 57's provision, "The procedure for obtaining a declaratory judgment pursuant to statute shall be in accordance with these rules . . . . "

More to the point, the court cited Osborne v. Hewitt, 335 S.W.2d 922 (Ky. 1960), which stated,
The appellants maintain that under CR 8.04 the averments in their complaint were required to be taken as admitted, because no responsive pleading was filed. However, we think no responsive pleading was required, because in stating the nature of the controversy upon which a declaratory judgment was sought the complaint alleged not only the contentions of the plaintiffs but also those of the defendants.
 This brings us head-on to the existential conflict between KRS § 418.015 which provides that an action for declaratory judgment, "may be heard and determined upon or without written pleadings," and Civil Rule 57 which suggests otherwise.

The unresolved tension between KRS §§ 418.005, et seq., Declaratory Judgment, and Civil Rule 57, Declaratory Judgment, notwithstanding, when a defendant prevails in part upon the merits, it's hard to argue that denying a motion for default was a mistake. Maybe I'll look for such a case sometime, but not today.

I think everyone involved should receive special thanks for never mentioning KRS § 454.405.

For what it's worth,. the Kentucky Court of Appeals releases its opinions every Friday. They can be located by looking at the Court of Appeals' minutes, here.

The Kentucky Supreme Court renders its opinions once a month, on or about the 20th. The Supreme Court minutes are found here.

Friday, April 18, 2014

Limits on criminal background checks in employment applications

On Wednesday, Nebraska Governor Dave Heineman (R) signed a bill that bars employers from asking prospective employees if they have a criminal record. The prohibition is a provision in a law designed to reduce prison overcrowding. Nebraska is the 11th state to pass such a law.

Last month, in March, 2014,the City of Louisville passed a similar city ordinance limiting the the use of a prior criminal conviction as a screening question for many city jobs, and for venders doing business with the city.

Louisville Metro Ordinance No. 46-2014, approved 3-25-2014, Metro Code § 112.30(B), provides in part:
(1) Except as otherwise provided by state and federal law, the City shall not inquire about an applicant's conviction history until after it has been determined that the applicant is otherwise qualified for the position. City job applications shall not contain a "box" or inquiry regarding an applicant's prior convictions and applicants shall not be required to check or otherwise fill in a "box" or inquiry regarding an applicant's prior criminal conviction(s).
(2) If an applicant reaches the final stages of consideration for hire, the City shall notify the applicant that a criminal background check will may be conducted, at which time the applicant will be given an opportunity to inform Louisville Metro of any criminal background history that the applicant may have.
(3) In making a determination concerning a previous criminal conviction, the City shall consider the following factors:

(a) The nature of the crime and its relationship to the job for which the person has applied;
(b) The information pertaining to the degree of rehabilitation of the convicted person;
(c) The time elapsed since the conviction or release;
(d) Any information produced by the person, or produced on their behalf, in regard to their rehabilitation and good conduct;
(e) The age of the person at the time of occurrence of the criminal offense or offenses;
(f) The gravity of the offense(s);
(g) The probation or parole status of the applicant; and
(h) The public policy of the City, as expressed in this section, to encourage the employment of persons previously convicted of one or more criminal offenses.
Code § 112.30(D)(1) applies to venders doing business with the city:
Vendors who apply for business with the City must follow the practice that initial vendor employment applications not contain a "box" or a question of inquiry on the initial application regarding an applicant's prior criminal history and applicants shall not be required to check or otherwise fill in a "box" or respond to an inquiry regarding an applicant's prior criminal history on the vendor's initial employment application, unless as otherwise provided by or required by state and federal law.
EEOC has previously (4/25/2012 )issued Enforcement Guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.

In the early 2000s, grassroots organizers in San Francisco and Boston began urging local governments to remove questions about convictions from job applications so that people can be judged first on their qualifications.

The National Employment Law Project (NELP) is a champion of this "ban the box" campaign. The "box" refers to a check box on any initial employment application that asks about the applicant's criminal convictions. It is also a project of Legal Services for Prisoners with Children (LSPC), "All of Us or None."

The NELP website states, "Conservative estimates indicate that roughly 70 million people in the United States have some sort of criminal record, and nearly 700,000 people return to our communities from incarceration each year. Supporting the employment opportunities of people with records creates safe communities, reduces childhood poverty, and strengthens families."

Tuesday, April 15, 2014

Bargain basement self-help law books

A used book is always less expensive than the same book bought new, but when you buy online, there is the additional cost of shipping that must be added in to the total cost. Since used book sellers on are allowed a flat $3.99 shipping per book, and the mailing cost of many books is less than that, booksellers sometimes sell their used books for as little as $0.01.

I was surprised to see a book for a single penny the first time, but when I thought about it, it made sense. The bookseller still makes about $2 per book. Even including the shipping cost, a hard-to-find used book for $4, delivered to you door, is a very good deal.

This is the way I buy books, when I can, and I recommend it.

The following is, as of this morning, available used for $0.01 plus $3.99 S&H.

These deals come and go.

Fed Up with the Legal System?: What's Wrong and How to Fix It
(Nolo Press Self-Help Law)

Most people today consider out legal system to be riddled with problems, from courts that don't provide access to the citizenry to lawyers who protect their legal cartel while price-gouging consumers. Can the system be changed? Here are more than 40 suggestions for making our legal system fairer, faster, cheaper, and more accessible.

Where did the official civil forms go?

Where did the official civil forms go? It's a rhetorical question, because I know the answer. They were deleted by the Kentucky Supreme Court last year, effective January 1, 2013.

Before that, Civil Rule 84 (DELETED) provided:

The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.

Adopted effective 7-1-53; deleted effective 1-1-2013
Previously, the Appendix of Forms (DELETED)with the Kentucky Rules of Civil Procedure had offered twenty-five official forms ranging from a Summons (Form 1)and a Complaint on a Promissory Note (Form 2) to the Cover of Brief to be Filed in the Supreme Court of Kentucky (Form 25). These now deleted forms dated from 1953, when the Civil Rules were first adopted. The stated purpose for these forms was:
The following forms are, under Rule 84, sufficient to withstand attack under the rules, and the practitioner using them may rely on them to that extent. In addition, they serve as examples of the simplicity and brevity of pleading required by the rules.
I don't miss these forms. I don't regret their passing into oblivion. As far as legal forms go, they were not that great to begin with. Some of the forms were misleading. Official Form 18, Motion to Intervene as a Defendant Under Rule 24, was for Rule 24.02(b) only. It would not have worked well for a motion to intervene under Rule 24.01.  

I think it is better that these forms are gone. However, they are not forgotten.

Monday, April 14, 2014

Bespoke legal advice

'Bespoke' is one of those words that will haunt your dreams until you look it up in a dictionary. I'll save you the trouble. It's an adjective meaning, "made to fit a particular person." Typically, it is used to describe tailor-made clothes that are uniquely fitted a particular person.

One end of the legal service spectrum is the one-to-one personal relationship between an attorney and a client that depends upon a high level of mutual confidence and trust. A significant part of legal professionalism focuses upon protecting the integrity and confidentiality of the attorney-client relationship through rules of ethics and disciplinary enforcement. The communications between lawyers and their clients enjoy the protection of an evidentiary privilege that generally is not available to other types of relationships.

The other end of the legal service spectrum is the anonymous and impersonal marketplace of cavaet emptor. Mostly unregulated and unsupervised, the marketplace is full of uncertainty and peril. Anyone can visit a law library or search online and access the very same source materials and model forms that lawyers use. The challenge for the non-lawyer is to find the one suit out of thousands that fits. A custom made suit fits much better than one bought off the rack, but it is also much more expensive. So it is with bespoke legal advice.

Ignorance of the law is no excuse, they say, but ignorance of the law is rampant. Lawyers have a professional duty to educate the general public on legal rights and obligations, but that is no simple matter and doing it isn't easy.

If you read a dozen opinions on the topic of the unauthorized practice of law you will be impressed by the nobility of intention expressed for protecting the public from legal incompetence. You may also notice that the opinions never, ever, discuss the quality of legal service offered by the individual charged with improper encroachment upon the lawyers' domain. You might also notice that the complaints usually originate from lawyers and not from disgruntled customers.

These turf wars present an interesting puzzle.

The Kentucky Supreme Court Rule 3.020 defines the practice of law this way:
"The practice of law is any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any natural person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefor. An appearance in the small claims division of the district court by a person who is an officer of or who is regularly employed in a managerial capacity by a corporation or partnership which is a party to the litigation in which the appearance is made shall not be considered as unauthorized practice of law."

The question is, what is the meaning of "any service rendered . . . [to]one requiring the services"? A non-lawyer might think it has something to do with "services".

Sunday, April 13, 2014

Unauthorized practice of self-help law

It's been nearly fifty years since the New York bar association sought to stop Norman Dacey from distributing his legal self-help book How To Avoid Probate. Dacey was generally contemptuous of lawyers and the legal system and he particularly disdained the probate system. Dacey's advice was to avoid the probate system at all costs, inter vivos trusts were an effective method for that purpose and his book was a detailed form book with instructions on setting up an inter vivos trust without the assistance of a lawyer.

Norman Dacey was not a trained lawyer, he was not admitted to practice law in the State of New York and he sold a lot of books there. When the New York bar sought to stop Dacey on the ground that his book amounted to legal advice from a non-lawyer, and it was therefore the unauthorized practice of law and illegal, the New York bar at first succeeded. New York County Lawyers' Association v. Dacey, 54 Misc. 2d 564, 282 NYS 2d 985, NY: Supreme Court (1967). It seems that Dacey's business went beyond the mere publication and sale of a legal self-help book. "Dacey operated in such manner that: 'as a direct consequence of his preparation of the Dacey trust arrangement, Dacey virtually assured himself of what amounted to a 6 percent sales commission on almost the entire assets of each estate . . . . ' ".

Upon appeal, the New York bar again prevailed . . . initially. In the Matter of New York County Lawyers' Association v. Dacey, 28 AD 2d 161, 283 NYS 2d 984 - NY: Appellate Div., 1st Dept., 1967, in a four-to-one decision, with Justice Stevens dissenting. Within two months the court simply reversed itself without elaboration and Justice Stevens' dissenting opinion became the majority opinion. In the Matter of New York County Lawyers' Association v. Dacey, 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459 (1967). The court held that Dacey's legal self-help book How To Avoid Probate was not legal advice and its publication was not subject to judicial control as the practice of law. Dacey's publishing activity was protected Free Speech.

The Dacey decision has since become the leading case on the subject of legal self-help publishing and the unauthorized practice of law, and it has been followed in many other jurisdictions.Dacey's book is still in print and it is still available for purchase in bookstores and online across the country, even in Kentucky. The Dacey decision has helped spawn an entire industry of legal self-help publications.

Kentucky courts have not addressed this legal self-help issue directly. The Kentucky Court of Appeals has quoted form the Dacey decision, with seeming approval, in a slightly different context. Edwards v. Land, Ky. App., 851 SW 2d 484 (1992)
'Without the establishment of an attorney-client relationship, an attorney cannot be said to render legal advice by simply providing a party with a statutorily required statement of the law. In such a situation there would not exist "that relation of confidence and trust so necessary to the status of attorney and client. This is the essential of legal practice — the representation and the advising of a particular person in a particular situation." ' [emphasis added]

Tuesday, April 8, 2014

Are lawyers idiots?

When an outsider considers the price lawyers pay WestLaw to access freely available public domain documents like appellate court opinions, statutes, rules of court and administrative regulations, one has to ask the question, "Are lawyers idiots for paying that price?". There is a certain convenience factor having all that stuff in one place, I guess. Hunting down statutes, rules of court and administrative regulations leads in 51 different directions and takes effort, but finding appellate court opinions is easy

An introduction to Google Scholar case law search

1. Google Scholar stores and indexes appellate court opinions.
2. Google Scholar offers advanced Google search options.
3. Google Scholar will send you email alerts when new opinions matching your search criteria are added.

4. Google Scholar  knows that I am located in Kentucky. You may not be so lucky.
5. You can select any state or federal court in any jurisdiction.

Google Scholar menus are flexible. The advanced search option can appear in at least two different places on the main page.

The Google Scholar advanced search option is the standard Google  advanced search option . . . very powerful.

As far as I can tell, all of Kentucky's appellate court opinions through the end of March, 2014 are indexed and available. The decisions rendered by the Court of Appeals on April 4, 2014 are not yet available.


Monday, April 7, 2014

Keeping up with the Kentucky Supreme Court: Best Practice

The various Kentucky rules of practice and procedure are subject to change at any time. If a particular rule is of critical importance to a case, it is of critical importance that the current effective amended version of the rule be known.

The Kentucky Supreme Court amends the individual rules of practice and procedure from time to time, but the Kentucky Supreme Court does not maintain compilations of all the rules. Currently, that job is performed by West Publishing Company. West's collection of compiled Kentucky court rules can be found online here.  Not long ago, the Kentucky Bar Association and the Louisville Bar Association maintained online compilations of the Kentucky court rules, but not any more.

Naturally, there is a short time lag between when the Kentucky Supreme Court issues an amendment to the rules and when the amendment is incorporated into the compiled version of the rules. There is usually/sometimes/frequently a gap between the issuance of an amendment to the court rules and the effective date of the amendment, so relying upon the online compilation of the rules is usually/sometimes/frequently a safe thing to do. Emergency Orders take effect when entered. The West online compilation indicates how current the online version is.

Great. The online version is current through March 1 and today is April 7. What has the Kentucky Supreme Court been up to since March 1? It's no big secret. It is all online at the Kentucky Court of Justice website here and this is what it looks like:

. The amendments are numbered consecutively by year and here is a clear indication of the rule being amended. The amendments are available as PDF files. What is lacking on this page is the date the amendment was issued and the date the amendment takes effect. For that information, it is necessary to look to the amendment itself and open the PDF file. The effective date of the amendment is indicated on the first page, at least it is on this example. I'm guessing the Kentucky Supreme Court formats these amendments the same way every time.

  To find the entry date of the amendment, it is necessary to go to the last page.

Boring indeed, but important.