No, don’t put it on Facebook

I’m not sure what George Orwell would have made of Facebook. I like to think he’d have been amused by the idea that social media would have put the Thought Police out of work. Lawyers everywhere are discovering, however, that it can keep them in work.

Big bro
Image from here

Ms Kelly Forman fell from a horse. She suffered spinal injuries and also acquired brain injury. She alleged that her brain injury caused cognitive problems which made it difficult for her to express herself. Among other things, she claimed that she had trouble using a computer and, in particular, spelling and remembering the rules of grammar so to express herself coherently. She sued the owner of the horse.

The defendant sought an order that the plaintiff provide access to her entire Facebook account on the basis that the photographs and written content were relevant to his defense, including showing the time it took the plaintiff to compose or respond to messages. The Supreme Court of New York County ordered the plaintiff to produce all photographs posted privately on Facebook prior to the accident which she intended to produce at trial, all photographs of herself posted privately after the accident, and records detailing each time she had posted a private message after the accident and the number of characters or words in the message.

The plaintiff appealed and the Appellate Division narrowed the order. The Defendant appealed to the New York Court of Appeals.

The Court of Appeals reinstated the original order. It rejected the idea that the scope of discosure of social media materials should be controlled by the accountholder’s privacy settings. The Courts should instead employ their well-established rules as to discovery, including as to preventing ‘fishing expeditions. When called upon to decide a dispute as to social media discovery –

courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.

As a generation rises whose entire life from conception onwards has been documented on Facebook, discovery disputes will be ever more important to personal injury lawyers.

Forman v Henkin (2018), New York Court of Appeals, 13 February 2018

Inside the Supreme Court Library

Because it’s Friday, it’s time for a heart-lifting post.

One of the many perks of being a lawyer is getting to work in some of the most beautiful buildings every constructed.  I wanted to stretch my legs this lunchtime and I took some pictures I’d like to share of the heart of the library of the Supreme Court of Victoria.

Image from here

The Supreme Court building itself is beautifully ornate sandstone on the outside.  When you get inside it, though, it gets even better.  At the very heart of the library is a gorgeously sculpted lamp over a reading desk.  I suppose the lamp must have been gas-powered originally.

The part of the building around this area consists of two roughly levels which contain the leading Australian and British law reports and law journals (the Commonwealth Law Reports, the Victorian Reports, the Appeals Cases, the Law Institute Journal and so on).  Other series of reports (American, Canadian and so on are elsewhere in the library)

Each of the sections of the floor is lavishly decorated.

A highlight for me are the stained-glass windows at the top of the dome.  They contain the small detail of Britain’s lion and unicorn crest and Australia’s kangaroo and emu.  I like the notion of showing the place where English law began and where it has now taken root.

The flora in this image seems to be the English rose.
The flora here seems to be stylised wattle leaves

I’m as much of a fan of electronic access to information as the next lawyer.  Certainly my work would be a great deal harder if I needed to go to the Court every time I wanted to read a case, rather than simply flipping open Austlii.  But I think it’s a good thing for any lawyer to head into a library like this one and remind themselves of the proud tradition – and honourable profession – they are part of.





Talk to them, madam

Suing emergency services for defective performance of their functions is difficult-to-impossible in most jurisdictions.  However, this does not exclude sanctions for criminally poor performance.

911 minion
Image from here

Crenshanda Williams was employed as a call taker by the Houston Emergency Centre. For reasons which are unclear, she hung up on thousands of 911 phone calls, including calls relating to robbery and illegal street racing. According to one report she dismissed a caller saying “ain’t nobody got time for this”. She was charged with interfering with emergency telephone calls.  Texas Penal Code §42.062(a) says –

An individual commits an offense if the individual knowingly prevents or interferes with another individual’s ability to place an emergency call or to request assistance, including a request for assistance using an electronic communications device, in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals.

This crime is punishable by up to a year’s imprisonment or a $4,000.00 fine.

Ms Williams was convicted by a jury in the Harris County Criminal Court. Clinton J sentenced her to 10 days imprisonment and 18 months probation.

An appeal has been lodged.

State v Williams (2018), Houston Chronicle, 18 April 2018

Dr Judge, I presume?

Most personal injury practitioners see a string of radiological records in every case. A recent decision from the US Seventh Circuit is a reminder of the hazards of reading them without adequate training.

MRI meme
Image from here

Ms Akin applied for Supplemental Security Income. She alleged that she became disabled in 2011 as a result of fibromyalgia, back and neck pain and headaches. She saw a number of treating doctors and underwent an MRI. She was also assessed by two medicolegal examiners. The latter concluded that she was fit for sedentary work. Her claim was rejected by the Commissioner of Social Security. She appealed to an Administrative Law Judge (ALJ). The ALJ preferred the opinions of the medicolegal examiners and found that Ms Akin was not disabled because she was fit for sedentary work. The ALJ also said that the MRI scans (which the examiners had not seen) were consistent with Akin’s impairments but did not support her allegations of pain.

Ms Akin appealed to the US District Court which upheld the decision. She appealed to the United States Court of Appeals for the Seventh Circuit. Her appeal was upheld. The Court considered that –

… the ALJ’s evaluation of Akin’s MRI results is flawed because the ALJ impermissibly “played doctor.” … The ALJ stated that the MRI results were “consistent” with Akin’s impairments and then based his assessment of her residual functional capacity “after considering … the recent MRIs.” But, without an expert opinion interpreting the MRI results … the ALJ was not qualified to conclude that the MRI results were “consistent” with his assessment.

The ALJ’s decision was vacated and the matter remanded for further proceedings.

Akin v Berryhill (2018), US Court of Appeals for the Seventh Circuit, 4 April 2018.

Don’t treat her like that

The law has been aware of the problem of elder abuse for several years. A case from Florida suggests that this concern has not yet reached the Bench

Karen Passmore died on the afternoon of 6 August 2015. She was aged 57 years. She had been dependent on others to care for her since suffering a stroke in 1993. Her daughter, Jackie Passmore, had been responsible for her care following the death of Karen’s husband Bill in 2014.

J Passmore
Jackie Passmore (Image from here)

At the time of her death Karen weighed 58 pounds (about 26 kilos). According to the arrest record of Santa Rosa County Sherriff’s Office she was found in a room which –

smelled of trash and rotting flesh. There were gnats swarming through out the room around old food and bags of soiled adult diapers. The decedent, Karen Passmore, was found to be extremely emaciated, filthy, and having numerous pressureulcers (bed sores). The worst of the pressure ulcers were infected and gangrenous. One of the wounds appeared to have been dressed using disposable shop towels and painter’s tape. It was immediately apparent that the decedent had critically needed medical care.

The record notes that some of the pressure ulcers had eaten away to the underlying bone*.

Jackie Passmore was charged with aggravated manslaughter of a disabled adult

A person who causes the death of any elderly person or disabled adult by culpable negligence … commits aggravated manslaughter of an elderly person or disabled adult, a felony of the first degree….

She was convicted by a jury in the Santa Rosa County Circuit Court. Despite a facing possible maximum term of imprisonment of thirty years, it appears she was not given a custodial sentence (although it seems she was detained while the charges were pending).

State v Passmore (2017), Northwest Florida Daily News, 4 August 2017


* Readers in Commonwealth jurisdictions will note the parallels with R v Stone and Dobinson [1977] 1 QB 354.

Nobody wants to see it

A recent case from the Geelong Magistrates Court (Victoria, Australia) gives an insight into penalties for indecent exposure.

'Sorry, I'm a doctor. If you want that looked at, you'll have to make an appointment like everyone else.'
Image from here

On 8 October 2017 a 31 year old man asked a 46 year old woman walking on a trail to “show her tits”. He then exposed himself to her. It appears he was charged with breaching section 48 of the Crimes Act 1958 (Vic.), for which the prescribed penalty is five years imprisonment:

(1) A person (A) commits an offence if—
(a) A engages in an activity; and
(b) the activity is sexual; and
(c) another person (B) sees the activity or a part of the activity; and
(d) A knows that B will see, or will probably see, the activity or a part of the activity; and
(e) A—
(i) intends that B will experience fear or distress from seeing the activity or a part of the activity; or
(ii) knows that B will experience, or will probably experience, fear or distress from seeing the activity or a part of the activity.
(2) A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).
A mistaken but honest and reasonable belief that the activity was not sexual is not a defence to this offence.

McGarvie M accepted that the man had no criminal record and that the offense was out of character. However, she considered that the victim would have been confused and then horrified. The offender was placed on a 12 month good behaviour bond and fined $500.00 without conviction.

Police v Devlin (2018), Geelong Advertiser, 16 April 2018, p.14

Nothing to See Here

Interesting decision out of Texas on the subject of video surveillance.

Image from here


A worker suffered a back injury while working on an oil rig in January 2008.  He sued his employer under the Jones Act alleging negligence and supply of an unseaworthy vessel.  Four years and two spinal surgeries later he was placed under surveillance by his employer and filmed for about an hour performing a range of outdoor activities.

At trial the Harris County District Court considered the footage inadmissible without viewing it.  The jury found for the plaintiff.  On appeal the decision to exclude the footage was upheld. The employer appealed to the Supreme Court of Texas.

The Supreme Court found that the trial judge had erred.  A trial court could not properly exercise its discretion to exclude without viewing it.

We hold that, as a general rule, a trial court should view video evidence before ruling on admissibility when the contents of the video are at issue. We recognize circumstances might arise where viewing is unnecessary or extremely onerous. For example, “[t]here may be cases where the probative value of the evidence is so minimal that it will be obvious to the court that the potential prejudice . . . substantially outweighs any probative value the evidence might have.” Additionally, video depositions need not be viewed before ruling on objections unless the objection is specific to a visual aspect of the deposition. Exigencies of trial, moreover, could make it difficult to find time to view a late-offered video, especially if the video is lengthy. The parties could potentially address such timing issues by submitting representative excerpts for the trial court’s review. In any event, trial courts should “undertake their best efforts in attempting to view the subject visual recording prior to ruling on its admissibility.” Exceptions should be few and far between.

A new trial was ordered.

Diamond Offshore Services Ltd v Williams (Supreme Court of Texas, 2 March 2018)

Bringing a Lawbook to a Gunfight

An interesting case came out of the US Supreme Court ten days ago.  In May 2010 three officers of the University of Arizona Police Department responded to a callout regarding a woman [Amy Hughes] acting erratically (hacking a tree with a knife).  On scene they found the woman’s housemate [Sharon Chadwick] on the other side of a chainlink fence.  Hughes came and stood about six feet from her, still holding the knife.  She ignored officers’ demands to drop the weapon and was shot four times by officer Andrew Kisela.

U AZ Police

Hughes sued Kisela on the basis that he had used excessive force, violating her Fourth Amendment rights:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The US District Court for Arizona summarily dismissed the claim.  The Ninth Circuit Court of Appeals reversed the District Court and remanded the matter for further proceedings.  The defendant appealed to the US Supreme Court.

The Supreme Court expressed doubt that Hughes’ rights had been violated but in any case bypassed the question.  It concluded that Kisela was immune from being sued.  In essence, a police officer will be immune from suit where their action did not violate clearly established rights of which a reasonable person would have known.  The existence of the right must be well established and should not be defined at a very general level: defining a right very generally would empty the immunity of value.

Where constitutional guidelines seem inapplicable or too remote, it does not suffice for a court simply to state that an officer may not use unreasonable and excessive force, deny qualified immunity, and then remit the case for trial on the question of reasonableness.

On the undisputed facts it was not obvious that a competent police officer would have known that shooting Hughes to protect Chadwick would breach Hughes’ Fourth Amendment rights.

Kisela v Hughes, 584 US ___ (2018)