Wednesday, May 28, 2014

You can't see the houses for the trees

I'm guessing that everyone living in Louisville has driven on 2nd Street and 3rd Street between Broadway and the University of Louisville main campus, too fast.

All you have seen of Old Louisville is a blur of ground floor red bricks and limestone. If you want to actually see Old Louisville, you need to get out of your car and look up. Or, know somebody with a camera.

In Summer, Old Louisville is green. In Autumn, is is burnt orange and yellow. It is at its most beautiful in Spring.

You can see the houses only in Winter.

Old Louisville, January, 2011 - 34 pages
Old Louisville, February, 2011 - 38 pages
Old Louisville, March - April, 2011 - 72 pages

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Sunday, May 25, 2014

Notes: Kentucky right to privacy

1. Impetus: Revenge porn. In a verdict published on Tuesday, a German court ruled a local man should have deleted erotic photos of his now-former girlfriend as soon as she asked him to, according to The Guardian.

2. McCall v. Courier-Journal & Louisville Times, 623 SW 2d 882 (Ky. 1981)

The invasion of privacy as an actionable tort has been part of Kentucky law since 1909.[f.n.7 - Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364 (1909).] Subsequently, the development of this theory of law has grown at a modest pace.[f.n.8 - For an excellent discussion of invasion of privacy, see Bunch, Kentucky's Invasion of Privacy Tort — A Reappraisal, 56 Kentucky Law Journal 261 (1967-68).] The basis of the tort, while not subject to precise definition, may be best described as the right of every citizen to be "let" alone. Private individuals have the right to live their lives without unwarranted interference by the public about matters with which the public is not necessarily concerned. Brents v. Morgan, 221 Ky. 765, 299 S.W. 967 (1927). There are exceptions to this rather sweeping principle of law. The right of privacy does not prohibit: (1) any publication of a matter which is of public or general interest; (2) the publication of a matter which is a privileged communication according to libel and slander law; (3) statements which are oral; and (4) a publication which is true. Id. Kentucky has not specifically adopted the "false light" aspect of the tort. 

We believe that the principles enumerated in Foster Milburn Co. v. Chinn, supra at note 7, and Brents v. Morgan, supra, which set forth the bases and nature of the tort of invasion of privacy, would best be furthered by our adoption of the principles of that tort as enunciated in the Restatement (Second) of Torts (1976). The pertinent section reads:
 "Sec. 652A. General Principle 
(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by
(a) unreasonable intrusion upon the seclusion of another. . . ; or
(b) appropriation of the other's name or likeness . . .; or
(c) unreasonable publicity given to the other's private life . . ., or
(d) publicity that unreasonably places the other in a false light before the public . . . ." 
3. A privacy right is distinguished from publicity rights (KRS 391.170) against unauthorized commercial exploitation. A privacy right is also distinguished from defamation.

4. Valentins Abasins - My Image is My Property - Personal Image Protection on the Internet

5.Montgomery v. Montgomery, 60 SW 3d 524 - (Ky.2001)

6. Except for "newsworthy" images, photographers are generally very careful about obtaining written permission, or releases, from subjects. Why?

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Legal history trivia

The Justices of the U. S. Supreme Court did not start issuing written opinions until 1834. Prior to that, decisions were announced orally from the bench. Unofficial and unpaid reporters in the courtroom took notes of what they heard and wrote the opinions as best they could. They were compensated by selling printed volumes of the opinions.

See: Draft article: The (Non)Finality of Supreme Court Opinions 
128 HARV. L. REV. ___ (forthcoming 2014)

Professor  Lazarus has a sense of humor.
"NOTICE: The final version of this article, here only in draft form as of May 21, 2014, is scheduled for publication by the Harvard Law Review in December 2014. The editors of the Harvard Law Review have not yet subject the current draft to their normal process of technical review, including cite-checking, editing, and proofing, to which all their articles, essays, and notes are subject prior to final publication. The editing and review process will occur over the summer. Fully aware of the inevitable irony, given this article’s topic, readers of this draft who identify any “typographical or other formal errors” in the manuscript are encouraged to notify my assistant . . . . "
Neither Kentucky Court of Appeals nor Supreme Court opinions are final upon initial public release.

See: Quirks of Researching Kentucky Appellate Decisions

WARNING: Everything I think, say or write is subject to revision at any time without notice.
Why? Because I screw up frequently and sometimes I realize it. 

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Friday, May 23, 2014

Punked by the Court of Appeals

In Smith (now Milby) v. Smith, 2011-CA-002306-MR, May 23, 2014, there was no video recording included with the record on appeal. Appellant argued, quite reasonably in my estimation, that Civil Rule 98 requires a copy of the video recording automatically to be included in the record on appeal..
 "Upon the filing of a notice of appeal, one of the two video recordings, or a court-certified copy of that portion thereof recording the court proceeding being appealed shall be filed with the clerk and certified by the clerk as part of the record on appeal. " CR 98(2)(a)
Kentucky's Circuit Court Clerk's Manual provides, "The “B” tape of any court trial or jury trial held in the case being appealed shall be included in the original record on appeal."

The Court of Appeals disagreed and held that the Appellant was required to specifically designate the video recording to be included in the record on appeal.


The trick is the entire proceeding being appealed from was a post-dissolution proceeding. The divorce was finalized in 2003. The court relied on Civil Rule 98(3)(c), which reads in part:
"To facilitate the timely preparation and certification of the record as set out in this rule, appellant or counsel for appellant, if any, shall provide the clerk with a list setting out the dates on which video recordings were made for all pre-trial and post-trial proceedings necessary for inclusion in the record on appeal. "  
Again, from the Kentucky's Circuit Court Clerk's Manual:
"Pre-Trial/Post-Trial Hearing Tapes. CR 98(3). The “B” Tape of any pre-trial or post-trial hearing, or any portion thereof, should not be sent to the appellate court unless:(a) listed and identified by date on the designation of record filed by a party; or * * * * "
Let's just say that the Court of Appeals did not make the distinction clear enough to suit me, and it took me a while to get up to speed.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Thursday, May 22, 2014

Law is like cooking but not at all like baking

I once had a girlfriend who was studying to become a chef at Sullivan. One semester it was bread and pastry and the next semester it was soup and sauces. I remained, throughout, a willing taste tester.

Other than gaining a few extra pounds in the process, my big take away was that baking is a science, but cooking is an art. This means that baking recipes are rigorous and once you have a baking recipe you like, you stick to it exactly, every time. And, every time you follow the recipe exactly, of time, temperature, proportions and process, you will produce exactly the same results.

Cooking, on the other hand, is not so exact. It is more of an art. A little of this plus a little of that, add what you happen to have on hand and season to taste. The results are never exactly the same, but a good chef always produces good results.

So it is with the law. I learned this today from legal greenhorns. The issue was the transfer of continuing child support jurisdiction from one California county to another after everyone had moved away from the original county where the divorce and child support order had originally been adjudicated. It's dirt simple, but it's not foolproof.

Here are the California statutes on change of venue that contain the allowable grounds, read these few opinions from the California appellate courts, mix in your facts and draft a motion. Easy.

But, it's not quite easy for someone who insists that court proceedings work like baking bread. No, I'm sorry, that's not the way it works. There is no recipe that guarantees results every time, in every situation and with every judge.Your ability to say the right things at the right time and in the right way plays an important part.

Litigation, clearly, is an art. It is not a science. It is cooking but not baking.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Evaluating client's problems

I don't have any actual clients, but after a few weeks of reading various online legal discussion boards, I have arrived at a rough esitmate.

30% of the issues presented exist only because there is a lack of enough money. Yeah, there are real legal issues involved, but solving the legal issues do not solve the problem.

5% WANT it to be a legal issue so as to buy a ticket in the great legal lottery game with a cash payout.

10% got caught but really don't want to go to jail and they are looking for some fail-safe legal technicality  that will make their guilt go away.

5% are, for lack of a better way to express it, mentally ill and are delusional.

5% never contemplate the possibility that a judge might not believe their story, so there is no corroborating evidence presented, so what to do now that it's too late?

5% are lawyers, law students or paralegals looking for free research assistance.

5% are incapable of getting along with others and they derive an unhealthy satisfaction from pointless turmoil. This typically involves next door neighbors who hate each other, restraining orders and calls to the police.

5% are pretty sure their boss is screwing them, and they might be right.

10% involve landlord-tenant issues. Many of these are included in the first items above involving money issues.

10% are child support or child custody issues that could easily be resolved if they didn't hate each other so much that causing problems was more appealing than resolving problems.

10% have genuine legal issues that can be helped by providing a link to a statute or a local ordinance.

2% involve bullies with badges, guns and arrest authority.

I think that add up to 100%, more or less.

This is an informal proof of Sturgeon's Law

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Wednesday, May 21, 2014

Copyright status of original Commonwealth works

I'll be brief. Citations omitted.

Federal copyright law preempts any common law or state statutory provisions that may linger around. Under the most recent comprehensive revision of federal copyright law, that went into effect on January 1, 1978, copyright exists from the moment an original work is reduced to tangible form. Registration of a copyright with the U.S. Copyright Office is optional.

Ownership of a copyright belongs to the author of the original work unless the work was produced by an employee in the course of his or her employment (work for hire), in which case ownership is with the employer. This, is subject to modification by mutual agreement, and copyright ownership is subject to alienation or transfer.

By statute, original works created by the federal government are public domain, with exceptions (?).

Original works created by state or local governments are not, by way of federal law, public domain. The states are free to do with their own copyrighted works for hire as they see fit.

Justices of Kentucky appellate courts are employees of the Commonwealth and appellate decisions produced by those Justices in the normal course of their state employment are automatically protected by federal copyright law when written. Actual publication is not a prerequisite for copyright protection. Notice of copyright is not a prerequisite for copyright protection. Registration with the U.S. copyright Office is not a prerequisite for copyright protection. Copyright protections just happen as a matter of law.

The Commonwealth of Kentucky has not, by statute, waived or relinquished copyright in any original works to which it is entitled to copyright protection. The Kentucky Supreme Court has not adopted any rule to relinquish copyright in any original works to which it is entitled to copyright protection.  For the most part, the Commonwealth has not registered many copyrights with the U.S. Copyright Office, although in some instances the Commonwealth has registered a copyrighted work. No Kentucky court opinions have been registered.

Registration of a copyrighted work is a necessary prerequisite to maintain a copyright enforcement proceeding under federal law.  Registration of a copyrighted work can happen at any time, but civil penalties for infringement are available only for infringement after the date of registration.

Kentucky Supreme Court opinions, for example, are copyrighted and owned by the Commonwealth of Kentucky, but the copyright is not enforceable in court until such time, if any, that those opinions may be registered with the U.S. Copyright office.

There is no reason to suppose that the defense of 'fair use' does not apply to original works owned by the Commonwealth.

Whew! The end.


Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Sunday, May 18, 2014

Is there a statutory right to counsel in civil cases?

Interesting question. To my amazement, there is a website for that.

The National Coalition for a Civil Right to Counsel

, . . and they have a nifty chart showing all the state statutes providing for a civil right to counsel.

Quite a few states have statutes that allow for court appointed counsel in a number of different civil proceedings. Who knew?

Kentucky makes one brief appearance on the list.

Kentucky: KY. REV. STAT. ANN. § 620.100(1) (West):

 In dependency, neglect, and abuse proceedings,
 “(a) The court shall appoint counsel for the child….
(b) The court shall appoint separate counsel for the parent who exercises custodial control or supervision if the parent is unable to afford counsel….
(c) The court may, in the interest of justice, appoint separate counsel for a nonparent who exercises custodial control or supervision of the child, if the person is unable to afford counsel….”

In each instance, the Finance and Administration Cabinet pays the counsel, and the fee may not exceed $500 dollars, unless there is a final disposition in the district court, in which case the fee may not exceed $250. Id.

§ 625.080(3): “The parents have the right to legal representation in involuntary termination actions. The Circuit Court shall determine if the parent is indigent and, therefore, entitled to counsel…. If the Circuit Court so finds, the Circuit Court shall inform the parent; and, upon request, if it appears reasonably necessary in the interest of justice, the Circuit Court shall appoint an attorney to represent the parent … to be provided or paid for by the Finance and Administration Cabinet a fee to be set by the court and not to exceed five hundred dollars ($500).”

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Sunday, May 11, 2014

Texas Garnishment Law

God bless Kentucky, but it's a small state and Southern Specialty Law Publishing Company is bigger than one state.

There is no down side to premature publication. The world of digital publishing benefits from a capacity for infinite revision and updates, and there is no such thing as too much exposure.

This is a work in progress, and an incomplete document. Now it is a collection of Texas statutes and Texas rules of civil procedure relating to Texas garnishment law, with the beginning of Texas appellate case opinions on the subject. I've been working on it for a while and it is slow going, since there are hundreds and hundreds of Texas appellate decisions deciding a wide assortment of issues about garnishment, and I have to read every last one of them.

Pre-publication version 0.2 - May 11, 2014

Anyway, I got impatient, and I decided that the work I have done so far could be useful to someone, as is. I will update this document periodically as my work progresses. Ultimately, it will a book covering every aspect of Texas garnishment law. I think I will call my company Southern Specialty Law Publishing Company. The statutes and rules of civil procedure are public domain, but my editing, notes and comments are copyrighted. The document, as a whole is copyrighted based upon my original contributions

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Saturday, May 10, 2014

Pro se appellants win appeal

Acuff v. Wells Fargo Bank, 2012-CA-001221-MR, May 9, 2014

This is an appeal from summary judgment in favor of Wells Fargo Bank in a foreclosure action. The pro se debtor defendants questioned Wells Fargo's standing to sue as an assignee of the mortgage using the Mortgage Electronic Registration System (MERS). An assignment from MERS to Wells Fargo had been recorded with the Kenton County Clerk, about a month after the foreclosure action was commenced.

The complaint for foreclosure was filed October 2, 2010;
The mortgage assignment was executed on October 26, 2010, and;
The assignment was recorded on November 4, 2010.

The main factual issue, however, revolved around Wells Fargo's ownership of the promissory note. It was determined that the original promissory note had been endorsed in blank, it was a bearer instrument and as such, Wells Fargo's possession of the original note was sufficient to establish ownership and standing to sue.

However, the only evidence offered by Wells Fargo was a 'photocopy' (more likely a scanned image) of the original promissory note, and not the note itself. The court held this to be insufficient to conclusively resolve the issue of fact and to meet the high standards for summary judgment.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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How boring am I, exactly?

How boring am I, exactly? Here is a clue.

I'm disappointed that the Kentucky Court of Appeals Clerk did not publish the court's minutes yesterday.

Oh. It's a trick. No court minutes for May 9, 2014, but by going to the court opinion page and searching for "May 9, 2014" the opinions are there.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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The ghosts of legal history and the Louisville connection

One hundred years ago, Louisville was a center for the law book publishing industry. I've seen a half dozen legal treatises, available on Google Books, from before World War I that were published by the Baldwin Law Book Company . The American Book Trade Directory of 1919 lists the Baldwin Law Book Company at 523 Court Place, next to Louisville Metro Hall.

Following the war to end all wars, Baldwin moved his company to Cleveland. In 1926 Mr. Baldwin purchased  Banks Law Publishing. In 1933 he consolidated the two companies  to form Banks-Baldwan Law Publishing Co. Banks-Baldwan later was purchased by the Thompson Corporation and then it was consolidated with West Publishing, also owned by Thompson, in 1996.  After Thompson's acquisition of the Reuter's Group in 2008,  Banks-Baldwan's Cleveland operation was phased out of existence by the end of 2010. The work done in Cleveland was shifted to New York, Minnesota, the Phillipines and India.

But, it began in Louisville.

Clearly, one hundred years later, it is time to start a new law publishing company. It's possible. Zero overhead. no printing costs, no distribution costs and near universal reach. Southern Specialty Law Publishing Company, Louisville, Kentucky.   The intersection of tradition and 21st Century technology.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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The Times They Are A-Changin'

The line it is drawn 
The curse it is cast 
The slow one now 
Will later be fast 
As the present now 
Will later be past 
The order is rapidly fadin'. 
And the first one now 
Will later be last 
For the times they are a-changin'. 
Bob Dylan

What do you get when you cross LegalZoom with Walmart? Meet Axess Law, a low-cost, high-volume Toronto, Canada law firm with three of its four offices located in Walmart stores and open for business seven days a week until 8 PM.

The South Carolina Supreme Court has recently approved LegalZoom's business practices, after a challenge for unauthorized practice of law. With a legal system that prices services out of the reach of middle and low income individuals and tens of thousands of unemployed lawyers, the result is an attractive business opportunity. Welcome Big Box Law.

California Supreme Court Justice Goodwin Liu summed up the problem in a speech last month:
"If you were to fill AT&T Park up with indigent people who qualify for legal aid, there would be just five people in the park who are legal aid lawyers to serve the entire ballpark," he stated. "Even for people at the median income, most people cannot afford a lawyer."
There is just one legal aid lawyer for every 8,000 indigent people in California.

Another avenue being explored is the Modest Means Incubator Project.
The first incubator, according to the Cal Bar Journal, was established at City University of New York in 2007. There are now an estimated two dozen incubators nationwide, including three in California.
"The Modest Means/Incubator Project is part of a national movement intended to explore the practical training of new lawyers and couple it with partial solutions for the struggles of the underserved middle class in discrete legal matters such as labor code violations, family law conflicts, consumer debt complaints and more. The Commission’s promotion of this project includes regional meetings and subsequent grants to applicants that best propose projects which incorporate the best practices of existing and proposed incubator collaboratives."
State Bar of California
 I'm still a fan of self-help law for those with more brains than money.

Tom Fox, J. D.
Louisville, Kentucky

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Friday, May 9, 2014

Nothing good comes from Calfornia

 I was taught that there is no federal common law, but there is. There is a federal common law of unconscionable contracts which preempts California state law on the subject.

About a hundred years ago, judges were hostile to the idea of arbitration. In 1925, Congress enacted the Federal Arbitration Act (FAA), 9 U.S.C. § 1, et seq., which preempted any state laws that attempted to torpedo arbitration, per se. The FAA states that arbitration agreements "shall be valid, irrevocable, and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract." [emphasis added] 9 U.S.C. § 2.

A problem arises when the nature of a specific claim is amenable to class action certification. The is no provision for any group action in the FAA that is similar to a class action. Given a choice between a class action and arbitration, in a 5 / 4 decision authored by Justice Scalia the Supreme Court of the United States  held in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 563 US 4, 179 L. Ed. 2d 742 (2011) that the agreement to arbitrate prevails, especially when the agreement specifically waived, or prohibited, proceeding with a class action.

The general rule in California, it seems, is that agreements which prevent a party from proceeding with a class action, while not per se unconscionable, are at least suspect and subject to revocation. The California principles relating to unconscionable bars of class actions are stated thus:
"[Th]e doctrine has both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. The procedural element of an unconscionable contract generally takes the form of a contract of adhesion, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it. Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided."

 Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (2005)
This California rule was not specifically aimed at arbitration agreements.

I have personally believed that having your cake and eating it too is a noble goal in life. Why not have it both ways? The court could certify the class, then stay further proceedings under 9 U.S.C. §3, await the results of arbitration for the class representative's claims and then apply the results of the arbitration to the class as a whole.

For what it's worth, there is a fascinating discussion about the common law history of group actions on Wikipedia.- Class actions.

Tom Fox, J. D.
Louisville, Kentucky

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Thursday, May 8, 2014

Americans lack confidence in SCOTUS

A newly released public opinion survey (PDF) from Greenberg Quinlan Rosner indicates general discontent with the Robert's court. Wide majorities disagree with the recent 5-4 party-line rulings that have upended a century of campaign finance law and tilted the rules in favor of the extremely wealthy and major corporations. The landmark Citizens United ruling was opposed by a whopping 80-18 margin.

By a 60-36 spread, those surveyed said that Supreme Court justices were more likely to be carrying out a personal or political agenda than working to render a fair and impartial judgment, an opinion that cut across party lines.

Overall approval of the Supreme Court has been falling since its 5-4 Bush v. Gore decision handed the presidency to George W. Bush in 2000, according to Gallup.

Frankly, it came as a big surprise to me when I learned that U. S. Supreme Court Justices are not bound by the same rules of judicial ethics that apply to other, lesser, judges. Yesterday, just for fun, I was reading the Kentucky Constitution, Bill of Rights, Section 2, "Absolute and arbitrary power denied." Stop.

I does not have much to do with anything, but I found it to be a happy thought.

The consensus in the Greenberg survey seems to have called for the elimination of life appointments for Supreme Court appointments.
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Wednesday, May 7, 2014

Most legal marketing is crap

I visit a lot of lawyer's web sites and the vast majority give me the creeps. Please re-read the memo which told nearly everyone else that folks hate pop-up windows. If your legal marketing strategy is based upon some ancient cartoon image of a cat patiently crouched down by a mouse hole waiting for the mouse to come out to be pounced upon, here's a clue for you: Nobody likes to be made to feel like a damn mouse.

On average, consumers need ten data points before making a purchase decision, and that is related to which toaster oven to buy. Handing your ass and your fortune to some lawyer is a tougher sell. This is why repetition in advertising is necessary over and over again, redundantly, and that is why it is so expensive to cast a wide net.

I understand the fascination with new clients. It is the times we live in, or the times hitherto we have been living in, that 'more is better' is an article of faith. It isn't true. Your best client is not your next client, it is your last client. A bird in the hand & blah, blah, blah. You've heard it before.

Surprise and delight the clients you have. Communication is cheap and easy, and it doesn't take much, as long as it is relevant and personal. "Hi. I hope you enjoyed Derby. I wanted you to know that nothing happened this week in your life-and-death legal situation, but we remain ever vigilant protecting your interests. Have a nice day."

It's just a thirty second email.

Tom Fox, J. D.
Louisville, Kentucky

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Tuesday, May 6, 2014

Wage & hour class action waivers

It's old news, but it is news to me.

From the  Bingham Greenbaum Doll LLP blog, April 16, 2013

" . . . . Many wage and hour claims pose little risk when they are brought individually by a single employee. This is because most employees proceeding alone will have relatively small damages and, thus, it might not be cost-effective for them to pursue legal action. These same claims, however, can give rise to major litigation when many similarly situated employees join together as a group. For this reason, many wage and hour claims never get filed unless they can proceed as class or collective action lawsuits. Employers now may be able to block these group lawsuits.

"Approximately two years ago, the U.S. Supreme Court held that states could not prohibit parties from waiving their rights to pursue class and collective actions. This left the question of whether federal labor law could prohibit these ‘class and collective-action waivers;’ however, over the last year, many courts have held that it does not. (Kentucky courts have not addressed this topic, but there is a good chance they will find these employer-friendly decisions persuasive.) These courts effectively opened the door for employers to require class and collective waivers as a condition of employment, and thus bar employees from pursuing large-scale wage and hour claims, and also prevent many smaller claims from being filed in the first place.. . . "
The Supreme Court reference is likely to AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 563 US 4, 179 L. Ed. 2d 742 (2011).

Also, on June 20, 2013, the Court ruled in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 1236 (2013) that class action waivers contained in mandatory arbitration clauses were valid even if plaintiffs prove that it would not be economically practicable to maintain these actions individually.

Neither of these cases involved wage and hour disputes. Neither case involved employment agreements. Each of the Supreme Court cases arose in the context of binding arbitration agreements. In AT&T Mobility LLC v. Concepcion the court praised not only the benefits of arbitration in general, but also the ease and efficiency of the alternate dispute resolution procedures actually in place under the circumstances of the case.

The Amreican Express case discounted the relevance of economical and practical alternatives.

There seems to be a big difference between waiving the right to pursue a class action in the context of an arbitration agreement, and the use to class action waivers as a condition of hourly employment, outside a collective bargaining agreement.

I never though about it before today, but  I am not as optimistic as Bingham Greenbaum Doll with the use of class action waivers for wage & hour claims in employment agreements. I have doubts.

Note to self: Look deeper.

Monday, May 5, 2014

Please take the poll

Please take the poll at the top of the right sidebar.

Are you a legal professional? Yes or No.

I can tell there are at least two or three folks reading this blog, from time to time, but I have no idea if you are in the legal business or not. Generally, I write what I want to write, but so far I don't have a clue who may be reading it.

Saturday, May 3, 2014

Everyday law and common legal needs in America

Some twenty years ago the American Bar Association undertook a general survey of everyday legal needs in the United States. Legal Needs and Civil Justice: Major Findings from the Comprehensive Legal Needs Study. One of the interesting findings was that many problems in life were not properly recognized as being legal problems or as having a significant legal component.

Major Findings and Conclusions

  1. Most people facing situations that have a legal dimension do not turn to the civil justice system for help.
  2. Even counting the efforts many people make to handle problems on their own or to get help from outside the legal system, substantial proportions of low- and moderate-income households still may need legal help.
  3. The kinds of legal problems reported by low- and moderate-income households are more alike than different. They are about bread and butter issues that come up in everyday life.
  4. Especially disadvantaged when it comes to needed legal help are households just above and just below the line that determines eligibility for publicly-funded legal services.
  5. Even with their combined efforts, the private bar and publicly-funded legal services programs now serve only a small portion of legal needs reported by low-income households.

The Challenge

"Taken together, these findings and conclusions sound an alarm that the civil justice system of the United States is fundamentally disconnected from the lives of millions of Americans. It must do more to address the personal legal needs of the American people if the nation is to make good on its commitment to equal justice."

More recently, the World Justice Project Rule of Law Index 2013 ranked the United States in eight areas compared to 96 other countries in the world (97 total, including the U.S.). The comparison did not look at the laws on the books so much as it looked at how laws were enforced and how well the legal system functioned. It wasn't horrible, but it wasn't great either.

U.S. world rankings:
  • Limited government powers: 17th out of 97
  • Absence of corruption: 18th out of 97
  • Order and security: 22nd out of 97
  • Fundamental rights: 25th out of 97
  • Open government : 13th out of 97
  • Regulatory enforcement: 19th out of 97
  • Civil justice: 22nd out of 97
  • Criminal justice: 26th out of 97
According to the the World Justice Project, millions of Americans can’t use our fine legal system because they can’t afford it. They have legal rights — to child support, Medicare benefits or protection against an improper home foreclosure — but they find these rights meaningless because they can’t enforce them. has an open forum for individuals to anonymously ask legal question, arranged by topic. Relying upon the number of questions asked in each category, here are the top ten civil legal concerns. If all criminal law categories were combined and included in this list, criminal law would rank number one in volume. But, criminal law issues generally have an urgency that many civil law matter lack.

  1. Child Custody & Support
  2. Wills, Trusts, and Estates
  3. Landlord & Tenant
  4. Bankruptcy, Debt, and Taxes
  5. Hiring, Firing, and Discrimination
  6. Marriage & Divorce
  7. Wages & Hours
  8. Immigration
  9. Adverse possession, mineral rights, water rights..
  10. Guardianship & Adoption
The Rule of Law is the bedrock of civil society. Success depends upon how well it works in actual day-to-day practice. When people encounter problems in life, it has a tendency to focus attention on ways to resolve those problems. This is what the legal system is for and if it fails, civil society fails. When I hear a state Governor channel the ghost of Andrew Jackson and tell a state Supreme Court to take its opinion and shove it, I cringe.

In April, when the Oklahoma State Supreme Court issued a temporary stay on the execution of Clayton Lockett, citing concerns about the constitutionality of that law, Oklahoma Governor Mary Fallin decided to ignore the court.

It was just another brick in the wall.

Friday, May 2, 2014

Designing book covers

Writing law books for no apparent reason is fun, but designing book covers for law books is even more fun. My natural inclination is to go with Ben & Jerry's maxim, "Is it weird enough?" I think I'll sleep on this one.

Oaks day at the Kentucky Court of Appeals

The Court of Appeals rendered two published opinions today.

Hinchey v. Commonwealth, 2012-CA-000561-MR, May 2, 2014

Trial court's denial of a motion to suppress evidence seized during a vehicle search following the defendant's arrest was affirmed.

The defendant's multiple conviction for unlawful possession of a handgun by a convicted felon held to be in violation of Double Jeopardy prohibition and KRS 505.020(1)(c), and reversed in part.

Illegally possessing two guns is not twice as bad as is illegally possessing one gun.

Spalding v. Marion County Board of Education, 2013-CA-000632, May 2, 2014

The grant of defendant's motion for summary judgment on issue of equitable estoppel applied to government agency was error. Equitable estoppel can be applied to government agencies in appropriate circumstances and the evidence on the issue was not without conflict.Reversed in part.

Court of Appeals' Minutes for May2, 2014

The problem

With a jointly owned deposit checking or savings account, one of the named account holders may be a judgment debtor while another is not. When the judgment creditor seeks to garnish the account to collect the judgment debt, the ownership share of the non-debtor joint owner is at risk of seizure.
Kentucky law regarding the ownership rights of joint account holders is the substantive context within which the practical procedural mechanisms connected to bank garnishments are discussed. The substantive law of joint account ownership may change, while the application of Kentucky’s Rules of Civil Procedure in garnishment proceedings remains the same. This is to say that the main focus of this book (How to Intervene in a Kentucky Bank Garnishment to Protect a Joint Account) is upon the practical procedural aspects of intervention in a bank garnishment proceeding, but the problem of joint ownership is what makes the discussion relevant and interesting.

There are two interrelated issues which represent the intersection between procedure and substance. How can a non-judgment debtor account holder protect his or her ownership interest in a joint account? And, how can a non-judgment debtor account holder establish that he or she is entitled to an ownership interest in a joint account?

There is a third problem much too vexing to contemplate. Kentucky law and standard bank procedures do not seem to provide for notice of an account garnishment to all joint owners.  What happens when a co-owner learns of an account garnishment only after the fact?

Legal research and writing for no apparent reason is a lot like science fiction.