Cautionary Tales About Indecisive Real-Life Events

Every litigator ought to be compelled to read Peter Boyer's recent piece (abstract only, unfortunately) about Dickie Scruggs* in the New Yorker. The unstated conclusion of the piece is that Scruggs brought about his own demise because he wanted to win every case, no matter how small. Which also happens to be a rather important attribute in most successful litigators you may know. So there you go, counselors. Kick some butt!

For the less faint of heart, check out this string of comments at Universal Hub about the horrific trolley crash in Newton yesterday. It gets messy when the lawyers start posting their phone numbers. Adam Gaffin smacks one of them down, thank goodness. If you still feel like you need a shower after taking a look this, that's completely understandable. Yuck. Just . . . yuck.

*"This is the sovereign state of Mississippi's proceeding. WIPE THAT SMIRK OFF YOUR FACE! Dr. Wigand's deposition will be part of this record. And I'm going to take my witness's testimony whether the hell you like it or not."

Decisionism Eats Some Crow

If you had predicted that this Supreme Court, this nine, would adopt an expansive view of permissible employment discrimination claims, Decisionism would have mocked you to no end. And yet that's exactly what happened today in two cases, Gomez-Perez v. Potter, No. 06-1321, and CBOCS West, Inc. v. Humphries, 06-1431.

Justice Thomas dissented in both cases -- not a big shock -- but his dissent in the Humphries case does provide us with one of the most curiously reasoned passages by any justice in recent memory:

Retaliation is not discrimination based on race. When an individual is subjected to reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race; rather it is the result of his conduct.

The italics, well, those are all Justice Thomas. Screwing around with this passage is unnecessary. It barks for itself.

Again? Really?

So here's another lesson: there are some contexts in which lawyers can rightly celebrate trial court victories and others in which a bit more circumspection is required. Sourcing Unlimited, Inc. v. Asimco Int'l Inc., First Cir. No. 07-254, decided yesterday, is a case in the latter category.

This is a case you should take a look at if you arbitrate. At all.

If You Want To Send Him To Jail, You Should Probably Take Some Testimony

This blog has devoted a lot of oxygen to criticizing lawyers who do a poor job for their clients. Sometimes the fault lies in, er, a different direction.

In Commonwealth v. King, Appeals Ct. No. 07-P-397, the District Court sent the defendant back to jail for 18 months for a probation violation. At the hearing the Court took no testimony, instead choosing to rely on a police report. Making this approximately the ten zillionth instance in which a court has misapplied, overlooked, or plain disregarded the hearsay rule.

The Appeals Court took a look at the record and noted that the defendant quite possibly did engage in some bad conduct, but said, in essence, NSFMF.

Two Lessons

Keep your promises. And read the contract. That's what we learn from NPS, LLC v. Minihane, SJC No. 10134, which the SJC handed down today.

Will this alleviate some of the sting from losing the Super Bowl? Hey, every little bit helps. And a win is a win.

**Disclosure: A few years ago, I was an insignificant member of a team of lawyers representing the plaintiff in this case.

Nonmutual Collateral Estoppel In The Criminal Context

Is that the best headline you've ever seen, or what?

So here's the situation: you and your pal are stopped by the police and they find drugs in the car. You and your pal hire separate lawyers. Your pal's lawyer moves to suppress the drug evidence because it was based on an illegal search. He wins and walks. You then file a similar motion, claiming that the Commonwealth is bound by the earlier determination that the search was illegal. Must the judge find in your favor?

Yesterday, in Commonwealth v. Stephens, SJC No. 9943, the Supreme Judicial Court said no. Interestingly, if you'd been pulled over in New York, the answer would have been yes.

Given that there are two schools of thought on this, don't be surprised if it goes all the way.

Open Meeting Plaintiffs Prevail (Sort Of) In Appeals Court

Today the Appeals Court ruled against Michael Flaherty and his compatriots in McCrea v. Flaherty, No. 07-P-224. The Court held that the defendants violated the Open Meeting law.

The victory for the plaintiffs, including Kevin McCrea, was not unequivocal, however. The Court sent the case back to the Superior Court for a determination of some factual issues. So Mr. Flaherty could still eke out a victory of sorts.

Still reading through this; updates possible.