Litigation and Protests

By now an ocean of ink has been spilt in the wake of the killing* of George Floyd. I haven’t added to it. If anything can be learned from the matters of <a rel="noreferrer noopener" href="http://&lt;!– wp:file {"id":1041,"href":"https://stephenthelawyer.files.wordpress.com/2020/06/pell-v-r-2020-94-aljr-394.pdf&quot;} –> <div class="wp-block-file"><a href="https://stephenthelawyer.files.wordpress.com/2020/06/pell-v-r-2020-94-aljr-394.pdf">pell-v-r-2020-94-aljr-394</a><a href="https://stephenthelawyer.files.wordpress.com/2020/06/pell-v-r-2020-94-aljr-394.pdf&quot; class="wp-block-file__button" download>Download</a></div> Pell v R and <a rel="noreferrer noopener" href="http://&lt;!– wp:file {"id":1042,"href":"https://stephenthelawyer.files.wordpress.com/2020/06/maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported.pdf&quot;} –> <div class="wp-block-file"><a href="https://stephenthelawyer.files.wordpress.com/2020/06/maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported.pdf">maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported</a><a href="https://stephenthelawyer.files.wordpress.com/2020/06/maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported.pdf&quot; class="wp-block-file__button" download>Download</a></div> Maryland v Goodson it’s that public passion does not necessarily translate into legal outcomes.

Be that as it may. There is one side of matters that has had me thinking, which is the potential litigation fallout. In particular, cases where participants in the protests find themselves suffering loss or damage

It seems to me someone like the poster above would be in a challenging legal position in seeking compensation from the organisers of a protest, and in particular one where the protest morphed into a riot. The most obvious analogy I can think of is that of sporting injuries, where players are generally taken to consent to the sort of harms (for want of a better word) which are an inherent part of the game (Smith v Emerson). On one view of the matter, the risk of a protest – especially one with angry and upset people – becoming violent may be an inherent danger of demonstrations. On the other hand, the consent posited does not extend to acts done solely with the intention of causing harm (McNamara v Duncan).

Further, deliberate harm is not considered to be susceptible to a defence of voluntary assumption of risk (Sibley v Milutinovic). What might be a more interesting question is whether a person can be taken to have engaged in contributory negligence by remaining after a demonstration has already deteriorated into indiscriminate actions as in the case of Ms Tauss mentioned above.

* I say killing rather than murder quite consciously and deliberately. Not knowing what the elements of murder are in Minnesota law it seems unwarranted for me to pre-judge the matter.

Lawyers shouldn’t blither

A story on the lighter side this evening.

I had a matter fixed for hearing yesterday for a nice lady with an injury case. She was quite nervous and so she’d brought three members of her family to the office for the conference pre-hearing. The client and her family are from India originally.

The hearing was to proceed by Zoom, and so we set the client up on a computer in a spare office. As I got everything ready, I was mainly thinking about the half-dozen other things I needed to do so the hearing would proceed smoothly. As I often do when I’m thinking about something else, I was chattering away rather thoughtlessly to avoid an awkward silence. One of the things I had to do was enter the computer login password, which is in part the word “Blackjack”. Without thinking about it I blathered away “so the password is ‘blackjack’ so clearly whoever set it up was either a keen gambler or a fan of the 1960s Country Party, the leader of the party then being called John “Black Jack” McEwen”

Prime Minister John “Black Jack” McEwen (source: Dept of Foreign Affairs and Trade)

The client asked why he was called “Black Jack” and I explained “well, I understand he had dark hair and had quite a dark complexion and …”. It was at this point that I remembered who I was talking to and the fraught ethnic times we’re in and thought in a panic “Oh Lord, I hope they don’t think I was having a go at them!”. I felt my face getting red and I blithered on by saying “and, I understand he favoured dark suits, and he was Prime Minister for a bit too, and … Oh good, we’ve got Zoom up and running!”.

I don’t think the client and her husband were paying much attention to it all, but from the grin on her son’s face he was clearly enjoying watching me trying to dig my way out of the hole I’d dug myself into!

Comic relief can be useful in stressful times; apparently yesterday it was my turn to provide it.

Better than Ever

Tonight’s post is a bit of a personal update.

I’m typing this post on the tram home just before midnight. I should feel pretty cranky. At present I’m working flat out and playing catch-up with a number of files. As a result of the sudden departure of a colleague my file load will probably go up by about 30-40%. I left the office tonight at about 11:40pm after settling the memo to counsel for a brief and the index for a court book for a looming worker’s compensation hearing. I don’t expect to be in bed much before 2am. I was hoping to run home from work which, plainly, did not happen.

As I said, I should be cranky. And I’m not. Every day I get to work with a great team of people. I’m doing work that matters, for clients who are genuinely grateful nine times in ten. The puzzles thrown up by the files are challenging and use every bit of my skill and knowledge as a lawyer.

How good is it? If I won the lottery on Saturday I’d still show up for work on Monday morning.

In which Court?

Over the years I haven’t had much trouble with work bumping into my private life. Oddly though, it did happen last night. While I was from the tram stop a black car pulled up beside me with four young men in it.

One of them leaned out and asked “how’re you going?” expectantly. I replied “good” and then “do I know you?”.

“Yeah! you appeared for me in Melbourne Children’s Court”

I was a little puzzled at this. I’ve appeared in a lot of courts but never in the children’s court. All I could reply was “oh; okay”. He asked “It’s Stephen isn’t it?”

“Yeah, that’s me” I said. They laughed and drove off.

I spent the evening trying to figure out who it could have been without success. Presumably it was someone I did act for at one time or another, Children’s Court or not. I can’t fathom what it might have been about though. Crimes compensation perhaps?

I suppose I must have done a decent job since he didn’t throw anything at me!

Anzac Day: Meet Jimmy

Today is a non-law post.  I wrote this for Anzac Day 2016 and I think it bears re-sharing today.  

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Tomorrow is Anzac Day.  For the benefit of non-Australian readers, Anzac Day commemorates 25 April 1915, when Australian, New Zealander, French and British troops landed on the Gallipoli peninsula during the First World War.  It’s also the principal day for commemorating Australia’s veterans of all conflicts.

Meet Jimmy.  Or more properly, Lance-Sergeant James Martin Voss, 3rd Battalion, Australian infantry.  The War Memorial’s roll of honour states that he died of wounds on 17 October 1916, aged 21 years.  He was a farmer by profession, from Burrumbuttock in New South Wales.  And he was my grandmother’s brother.  She told me once that she remembered exactly where she was when she last saw him – under a tree not far from the family’s farm – and I remember that she called him “Jimmy”, the nickname he must have had as a boy.

He enlisted on 26 August 1914, 22 days after Australia entered the war.  His service record says that he died in Belgium – probably at Ypres – of a gunshot wound to the head.  Reading between the lines, I suspect that the wound was self-inflicted.  Who could blame him if he decided to choose the time and manner of his death?  Not every wound on a soldier is physical.

Image from here

There’s a good argument that the Great War made possible such peace and security as exists in the world today.  But ‘big ideas’ like this seem empty in the face of the pain and wasted life of a young man.  The only thing that can ease human pain is human joy and human hope.  I’d like to hope that before he left this world, Jimmy had the chance to know some of the poilus – the farmers and countrymen like himself who were the backbone of the French infantry – and that he found in them kindred spirits.

Image from here

I’d like to think that Jimmy would have been comforted to know that his sister became a nurse and a midwife, and preserved and birthed life in a world he had seen blasted by death.  I don’t think that his sister ever stopped missing him, from their farewell in 1914 until her own death 80 years later.  Perhaps it would have been a comfort to her to have seen the care lavished on the Lijssenthoek Military Cemetery by the Belgian people.  And perhaps it would have been comforting to both of them to know how beautiful Ypres would become once the guns fell silent and life returned.

Image from here

 

Time for real talk: Covid Malaise

The longer the Covid-19 situation goes on, the more I find myself affected in ways I did not expect. My own contact with the disease is, as best I know, minimal: friends of friends of friends may have been infected, but that’s all. What I’m noticing however is a kind of “plague malaise” affecting me at work.

Some of this malaise is simple change of routine: checking the news far more than I usually would and not going out at lunch hour unless I particularly have to.  And there’s probably a degree of lassitude after a scorchingly busy couple of months.  But I think what’s also affecting me is the constant sense that things might change at the drop of a hat.  Will movement restrictions suddenly come in so that I can’t leave Melbourne for Shepparton?  Will the city be placed in lockdown, obliging all of us to work from home whether its practical or not?  Will we enter a harsh economic downturn? And – kind of important – will people begin dying in quantity?

The reason I mention this is that I’m wondering if other people in the law are having the same experiences.  These are the things I’m especially noticing –

Firstly, I’m struggling to get work done.  Every task seems to take twice as long as it would normally.  But despite this feeling of my brain being less sharp, I seem more reactive in other ways: today I had to write something involving a police Superintendent; a certain Simpsons reference made me laugh like a drain.

Sometimes I have to make a conscious effort to smile and not to bite the heads off of my co-workers, despite them being people I like and and whose friendship I value.

I find I’m getting more and more “dark”. Usually my thinking music at work is “Rhapsody in Blue”. Currently it’s Saint-Saëns “Danse Macabre”.

Danse Macabre (1493)

Thinking in a sustained way is a challenge. This morning I was trying to read this article on the illegality defence in tort law, and the decision of the High Court in Smith v Commonwealth Oil Refineries Ltd (1938) 60 CLR 141, both of which are relevant to cases I’m handling.  Each is fairly straightforward, although if you watched me knot my forehead up trying to make sense of them you wouldn’t necessarily know that.

Finally, I’m much more indecisive than I usually am.  Last night I was looking over a possible claim for a fellow whose claim is out of time.  I know the case is a dead duck.  Even if on paper it might be possible to finesse a win, I know it’s a pointless exercise.  But could I make up my mind to so advise him?  Nope.  I dictated two-thirds of a rambling, indecisive letter of advice before I gave it up as a bad job.

Now, I don’t think I’m cracking up.  I certainly don’t think I’m at the end of my road as a lawyer!  But I think the current conditions are taking more of a toll on me than I thought they were.  And that has me thinking: has the pandemic had an impact on you, despite not being directly affected by the Covid-19 virus?  If it has, how?

Litigation in the time of Covid

The outbreak of Covid-19 and the proclamation of a pandemic has been making most human activities challenging.  Litigation is no different: at present I’m looking at an array of hearing dates being pushed off into the ether for want of a jury.

For better or worse, the Courts can order matters to proceed as judge-alone trials rather than jury trials.  A short decision from the Supreme Court of Victoria gives some idea what factors will be considered in the time of Covid.

In the matter in issue the plaintiff alleged that he was sexually abused at a Victorian school.  Proceedings were issued in the Supreme Court of Victoria and both parties requested that it be heard by a jury.  The plaintiff subsequently asked for the matter to be heard without a jury, which the defendant opposed.

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Photo by cottonbro on Pexels.com

Macaulay J noted that –

It is not currently known how long the suspension of jury trials will last. Doing the best I can, I think the projection is likely to be of the order of many weeks not just days. It could be a number of months.

He also noted that the effect of this would be to cause significant delays and extra strain on the Court system.  While the Court had a discretion to dispense with a jury in the interests of justice, a jury would generally decide the matter if a party so requested.  His Honour also observed that the Civil Procedure Act 2010 obliged him to promote the just, efficient, timely and cost-effective resolution of the issues in dispute.

The factors Macaulay J particularly considered relevant to the justice of the case were –

  1. The nature of the plaintiff’s injuries and the impact of the litigation process on him
  2. The “unprecedented nature of the current coronavirus crisis means that it is totally uncertain when this case could be heard again before a jury”
  3. What the case would be heard again it would be competing for a hearing date with many other matters.
  4. There was no factor in the case which would make a judge-alone trial unjust.
  5. The delay and the uncertainty as to a new hearing date stood to cause “real injustice to the plaintiff”.
  6. There was a public interest in cases being dealt with in an orderly, timely and cost-effective way.  This contended against deferring cases in a situation of uncertainty

The Court decided that the matter should proceed without a jury.

Mulquiney v Reynolds [2020] VSC 119

Article published!

I had a bit of luck recently with the publication of an article on liability of landowners for accidents on adjoining roadways.  This goes directly to a matter I have on foot presently.  In case it’s of broader interest, the citation is – ‘Bumps in the Road’ [Winter 2020] ABA Committee News: Automobile Litigation and Staff Counsel 8

A copy is here-

‘Bumps in Road’ (Winter 2020) ABA Cmte Newsl 8

vintage car wrecked grayscale photo
Photo by Pixabay on Pexels.com

What is a dog?

Labradors like food.  The last one we had at the farm would eat anything his powerful jaws could grind up. He only came to grief when he tried it on a brown snake, with sadly fatal consequences (R.I.P. Roly).

So I was interested in a story that landed in my inbox this week.  According to 101.5 WPDH, Shannon Walton of Hopewell Junction, NY, fed her Labrador/beagle cross with “Blue Wilderness” dog food because it was advertised as “inspired by the diet of wolves.”  Her dog put on substantial weight and was diagnosed with diabetes and canine obesity.

The lawsuit claims that Blue Buffalo was deceptive in their advertising because the food contains “high levels of dietary carbohydrates, which are neither healthy for dogs nor a meaningful part of the diet of grey wolves.”

The Hopewell Junction woman is seeking a class-action lawsuit which she says could reach over $5 million.

This left me wondering what, specifically, such a claim would be for.  Strictly speaking, her dog is an item of property.  Presumably, Ms Walton would be entitled to the diminished value of the dog, which I suppose would be a few hundred dollars at most.  On the other hand, if the dog is viewed as part of her family, perhaps harm to it is something which the food manufacturer should reasonably have foreseen could cause mental harm to a person of ordinary fortitude (Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317).  If this is the case, then the claim may have significant value.  But, does this tend to treat Fido, not as an animal, but rather as a small human in a dog-suit?  And is this something the law should be doing?

What cheerleaders say on Twitter

Social media has become a pit for the unwary.  Pretty well every comment or ‘like’ you hand out has the potential to come back and bite you, either in your career or in the form of a headline.  Or in the case of a cheerleader, in a captaincy.

San Benito High School in Texas seems to have a strong and successful cheer team.  In early 2017 a young lady identified as “ML” was appointed as head varsity cheerleader.  A few weeks later, she was called to a meeting with the team coaches where she was stripped of her post and dropped from the team.  The coaches had found her Twitter feed, which they considered to have been “inappropriate”.  In particular, they were alarmed that she had liked posts created by others saying –

  • “Imma show my mom all the snaps2 from girls partying for spring break so she can appreciate her lame ass daughter some more,”
  • a tweet about braiding hair containing the acronym “lmao,”
  • a tweet containing an image of a text-message conversation between a mother and a daughter, in which the word “fuck” is used twice
  • “I love kissing lmao,”
  • “i [sic] don’t fuck with people who lowkey try to compete with/ out do me,”
  • “I fucking love texas [sic] man, it’s so beautiful and just overall great! Why would anyone want to leave Texas[?],”
  • “I love her [third-party Twitter user] I FUCKING LOVE YOU SO MUCH AND YOU DONT [sic] EVEN KNOW IT LIKE BITCH I HOPE YOU DO GREAT SHIT IN LIFE I BELIEVE IN YOU,”
  • a tweet from a Twitter account entitled “Horny Facts™,” which states, “bitch don’t touch my . . .”4

In addition, she had retweeted a post from “Bitch Code” and replied in the affirmative to the question “Did pope split you in half??”

The plaintiff, by her mother, brought proceedings alleging a violation of her free speech rights.  Statute 42 USC §1983 relevantly states that –

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects … any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ….

The claim was dismissed at first instance on the grounds that the defendants were entitled to a qualified immunity.  The plaintiff appealed to the 5th US Circuit Court of Appeals.

San Benito HS
Image from here

The Court noted that a defendant will be entitled to qualified immunity where their action “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”.  Immunity will be made out where there has been insufficient case law to warn a defendant that their acts violate the Bill of Rights.

The Court then proceeded to review the available case law on the free-speech rights of school pupils.  It concluded that at the time of ML’s dismissal, the case law on out-of-school speech had not established clear boundaries.  The Court took the opportunity to sum up the available case law in the hope of offering guidance to school administrators –

First, nothing in our precedent allows a school to discipline nonthreatening off-campus speech simply because an administrator considers it “offensive, harassing, or disruptive.” …. Second, it is “indisputable” that non-threatening student expression is entitled to First Amendment protection, even though the extent of that protection may be “diminished” if the speech is “composed by a student on-campus, or purposefully brought onto a school campus.” …. And finally, as a general rule, speech that the speaker does not intend to reach the school community remains outside the reach of school officials. ….  Because a school’s authority to discipline student speech derives from the unique needs and goals of the school setting, a student must direct her speech towards the school community in order to trigger schoolbased discipline.

The court declined to say whether the case at hand actually had breached these principles.  It concluded that “there was no clearly-established law that placed M.L.’s rights beyond debate at the time of” her dismissal.  As such, the claim of immunity was made out.  The appeal was dismissed.

Longoria v San Benito Independent Consolidated School District (US Ct of App. 5th Cir., King, Higginson and Duncan JJ, 4 November 2019, unreported)