Take a hike

If I can see you do it, everyone can see you do itWorking in the legal business (specifically, a law library), I see all kinds of baseless lawsuits.

There was the lady who decided that she didn’t want to pay her mortgage anymore and was incensed that the bank was working to foreclose on her house.  There was the guy who racked up $80,000 in credit card debt and then decided that it was the credit card company’s fault for giving him credit cards (and decided that he didn’t want to pay for his spending spree).  There was the couple who were angry that their neighbors were suing them simply because their pit bull dogs would run wild in the neighborhood killing other neighborhood pets.  The nerve of some people?!

Then there is the article I was reading to day of a Dallas, Texas woman who is suing Persopo.com.  According to the plaintiff, she stated that

Persopo.com ruined my life by revealing private information about me

Uh, no, it didn’t, but we’ll get to that latter.  Anyway, seems woman’s husband had suspected that she was cheating on him for sometime.  Tell-tale signs were staying out at all hours and not telling him where she had gone.  So, husband found Persopo.com which is a data mining company.  Basically, you go online, type a person’s name and state in which they live and Persopo.com looks for every bit of public data available.

The key word here is “public data.”  It’s kind of like if someone were to take a picture of a building and you happened to be in the picture and then that person published that picture somewhere.  You do not have rights to that picture because you were in the public view (i.e. standing on a public sidewalk).  You have no right to privacy (nor should you have an expectation of privacy) when you are out and about.  Sorry, that’s just the way things are.

Anyway, lady filed suit against Persopo.com because it showed, now ex-husband, everything she was doing.  According to now ex-husband,

When I searched her name it came right up, she had accounts matching her name and email on cheatingwives.com, match.com and many others.” Frank said. “I just couldn’t believe this was the woman that I married.

It even showed now ex-husband a Match.com profile where it said she had never been married.  I just have to say, what a stupid broad.  Really?  Screw around, get caught and now you’re suing a company that mined PUBLIC information.

In any event, it will be interesting to see where the court goes with this. I mean will the court follow the basic rule of law (if you’re in a public place, you have no expectation of privacy) or will the court go all political and make law from the bench?

Stay tuned.

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Definition for the Month of July

Unless you’ve been living in a cave, you have probably heard about the latest round of U.S. Supreme Court decisions regarding (among other things) medicine and all things medical.  As such, I thought it would be fitting to make this months definition something that concerns many persons around the world (if not everyone).  The word for the month of July 2012 is MALPRACTICE.  According to Black’s Law Dictionary (West), Malpractice is defined  as: an instance of negligence or incompetence on the part of a professional.  Wowsers!  That one heck of a definition….but…uh, what does it all mean and how is it applied.  To see the application, let’s look at two professions that are often the target of malpractice actions.

The first example deals with the medical profession. Medical Malpractice (as per Black’s Law Dictionary) is defined as: A doctor’s failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances.  It is important to note the phrase “same medical specialty” because there are many, many different specialties in the medical profession.

For our purposes, let’s look at one example that happened recently. A few weeks back this guy gets a diagnosis of cancer. He and his wife empty their bank accounts, sell their house, and they go on a spending spree to do everything on their bucket list. Then, after all the money is gone and he’s waiting to die (a slow, painful death), the doctor comes back and says – “Oops, we misdiagnosed you. You don’t have cancer and you’re not going to die, after all!” Oops? OOPS!?! Is that all you have to say?!???!?!? If you think you’re a victim of medical malpractice, might I suggest you take a look at American Jurisprudence Pleading and Practice Forms (Annotated); Volume 19A-19B (Physicians, Surgeons and Other Healers) (West), Medical Malpractice: Discovery and Trial (PLI), and California Medical Malpractice: Law and Practice (West).

The second example deals with the legal profession. Legal Malpractice (as per Black’s Law Dictionary) is defined as: A lawyer’s failure to render professional services with the skill, prudence, and diligence that an ordinary and reasonable lawyer would use under similar circumstances (also termed attorney malpractice).

In this example, imagine having forked over $20,000 to an attorney to represent you in a family law matter. Six months later, you find out the attorney never filed anything, never responded, never did anything (just took your money). Or say you’re in a case and your attorney accepts a settlement without consulting you (the client). Oops! Big no, no. Or, let’s say you hire an attorney. He files the complaint. He files/argues motions on your behalf. He does everything he’s supposed to do BUT on the day of trial your lawyer doesn’t show up and you’re left swinging in the wind. Can you say awkward!?
 
If you feel you’ve been the subject of Legal Malpractice, might I suggest you take a look at Legal Malpractice: Liability, Prevention, Litigation, Insurance (West), Legal Ethics: the lawyers deskbook on professional responsibility (West), and Mad at your Lawyer: What to do when you’re overchaged, ignored, betrayed, or a victim of malpractice (Nolo Press).

I guess the bottom line to all of this is that if you think you are (or soon may be) a victim of malpractice, don’t just sit there and take it.  Nope, you need to stand up for your rights, go to your local county law library, talk to your friendly neighborhood law librarian because if you don’t do it, no one else will do it for you (for free).

Useful (FREE) legal websites

If there is one thing that people ask me all the time it’s, “Can’t I find this online for free?!”  Most times you can’t.  Sometimes you can and even when you can odds are by the time you find what you need online (for free), the powers that be have determined that what you need is actually valuable and useful and have removed it and neither you (or anyone else) can’t find it anymore.The thing to keep in mind when using FREE legal websites is that even though it may be FREE (in that you don’t have to pay anything up front), everything is associated with a cost and the cost of a FREE legal website is the hair you might be pulling out of your head because you can’t find exactly what you’re looking for because as we all know (or have heard at some point in our lives), there ain’t no such thing as a free lunch. So, with that in mind, let us go forth into the wiley world of FREE legal websites.

California Codes (www.leginfo.ca.gov/calaw.html. No less than 8 times a day people will call into our law library asking if they can find the California Codes online. As it turns out, you can at . Listed on this website are all 31 California Codes. The kicker is that 1) they come without annotations (meaning nothing to help you understand what the codes mean) and 2) it comes in raw text (meaning, you have to sift through a bunch of codes that are similar to your searches but are not exactly what you were looking for).

United States Supreme Court decision from 1893 (www.findlaw.com/casecode/supreme.htm).  Have you ever had the situation where you found a website with great links and then one day the link you liked the best just disappeared?  Actually that happens all the time but one great website that that happened to is United States Supreme Court decisions from 1893. 

GPO Access  (www.gpo.gov/fdsys).  What I suspect happened is that a group of people in federal land got together and said, “hey, why don’t we gather everything together that is federal related and put it on one website.  Then, when people get comfortable and know how to use it, we’ll yank it out from under them, remove it entirely from the web, and really mess with their heads.  Well, they’ve got the first part right – I’m just waiting for them to turn it off.  Until “they” do, go forth and search all things Federal.

Cornell Legal Information Institute (www.law.cornell.edu). Actually, this last website is probably the most valuable because it includes resources relating to both state and Federal rules and laws.  In fact, it is so valuable that any library worth their salt knows this website by heart (it’s that good).

So, next time you’re out and about the World Wide Web, know that while most things aren’t free – some are and if you want/need to know where to find what’s what and where, the person you need to talk to is your friendly neighborhood law librarian (’cause if we can’t find it, odds are it can’t be found).

I’m FREE!

Do you know what the odds are of being hit with lightning twice in one day?  Do you!?  Well, it has happened to me on Monday, last.  I had two people come into the law library asking the same question with virtually the same fact pattern.  What are the chances of that?!?!  As turns out, pretty good.

First set of facts.  Let’s say Person “A” gets arrested and charged with a crime, is arraigned, and gets up to the point of going to trial and the District Attorney (DA) decides not to prosecute (i.e. go to trial).  So, there’s no judgement, no probation, no nothing else and Person A is left hanging in legal limbo with a goofy look on their face hoping the DA will just forget about them but getting stuck with that sickly feeling in the back of their head that someone is going to lower the boom on them sometime in the future.  It’s enough to give anyone an ulcer!

Second set of facts.  Let’s say Person “B” is never arrested, never arraigned, never anything – and then one day they finds out they were added as a defendant in a criminal case but then, again, Person B was never prosecuted (i.e. no trial, no probation, no anything).

What a bummer!  What a pain in the neck!  What the heck can Person A and/or Person B do to clear their rap (report of arrest and prosecution) sheet. See, the problem is that there is always that one application that says, “Have you ever been arrested or charged with a crime?” If you say “YES,” you can say good-bye to that job.  If you say “NO,” a quick background check and you’re fired.  So, what can you do to clear your record forever?

Well, after talking with a number of criminal attorneys (that’s attorneys that work with alleged criminals – not attorneys who are criminals), a couple of DA’s, and a score of librarians, I finally sent an email to the Department of Justice (DOJ) for the state of California and this is what the DOJ had to say: What you need to do is:

  1. Go to the superior court/arresting authority where the matter occured, and;
  2. File a Penal Code (PC) 851.8 motion to Seal and Destroy the Record.

This is not an expungement (PC 1203.4). An expungement seals (no, not Navy Seals) Navy Seals the record and deals with those situations where the person was tried, convicted, and was incarcerated or granted probation. Merely sealing a record does not make it go away and, in fact, the DOJ still has a record of everyting which they can pull up at will (meaning, when it is most embarrassing or damaging to you).  A PC 851.8 motion, on the other hand, seals AND destroys the record so that it literally ceases to exist.  No existance means you can answer “NO” on any application with reckless abandon. It means that the Sword of Damocles is no longer hanging over your head for years and years.  Is that cool or what?!? Well, I think it’s pretty cool. To see how Penal Code 851.8 reads, point your attention to the Unannotated California Codes.

Anyway, I just thought this was cool seven ways from Sunday and wanted you all to know that even if you don’t think you’ll ever need to use a law library (or a law librarian), we’re here when you do.

It’s All a Scam!

Do you ever the sense that everyone really is out to get you?  I’m not talking about that sick sense you have in the back of you mind that tells you you’re crazy (although sometimes those voices do have some pretty good ideas). No, I’m talking about all those tricks people play to squeeze your hard, earned money out of your hands.  I work with a lady who works at Target (a department store here in California) who was telling me about one popular scam she sees everyday.  The scam works like this – people buy things with a coupon. Then they go to another Target store and return the item and get the full cash value in return.  So, say the coupon gives them $10 off; they drive to the other store and get what they paid, plus the $10.  They do this over and over and over.  You’d think Target would get sick of this scam and write code into their cash registers to keep track of this stuff.  You’d think.

Another scam deals with automobiles.  Actually, this one hits pretty close to home as it happened to me.  See, I was in the market for buying a used car.  I found one – a Honda Hatchback.  It was 12 years old, had a clear title and the price was pretty OK.  The thing that should have tipped me off was that the engine was spotless – not a drop of oil or grease or dust anywhere.  That and the odometer read 20,000 miles.  12 years old and 20,000 miles.  Yeah, right.  Well, I was young and stupid and I bought the car, anyway.  4 months later, I threw a piston rod and the mechanic says, “This is an old, old engine!”  What I didn’t realize when I handed over my cash was that the sellers had turned back the odometer to say the miles are lower than they were – suggesting to the mind that the engine was in great shape.  Live and learn, I guess.  Actually we here at our law library have a great resource that deals with car scams.  It’s called Automobile Fraud and is put out by the National Consumer Law Center.  It covers car scams, lemon law(s), and everything that has to deal with underhanded automotive dealings.

Another type of scam is identify fraud.  This one covers a whole gamut of offenses and leads to a whole lot of litigation.  I remember not too long ago my wife and I got our credit card numbers lifted.  In minutes, the person(s) who stole our numbers were at the fast food places, buying televisions, a bunch of stuff we wouldn’t do – which is why the credit card was frozen by our bank because it saw a funky pattern of purchases.  Maybe you’ve been a victim of Identity theft/fraud.  Maybe you’d like to read up on identify theft/fraud.  If so, perhaps you should point your attention to a great pamphlet Online Identity Theft Protection for Dummies. Another great resource is called Credit Repair by Nolo Press.  Sadly, it deals with the after effects of identity theft, but at lease it’s something.  
 

The last type of scam I want to address in this posting is a personal sticking point because people who are in a position of public trust are intentionally messing with our heads for profit.  Not that I’ve ever had the misfortune to deal with it but it’s still a scam nonetheless.  Specifically, I’m talking about expunging a felony record.

Here’s the situation.  A person gets charged with and is prosecuted for a felony (i.e. a year or more in prison).  The person gets out on probation, serves his full probation, doesn’t do another bad thing, is a stellar citizen, and then tries to get a job.  Now, every job application has a question somewhere that says – have you ever been convicted of a crime?  That’s where the felony thing comes up.  If you answer “YES” you can forget about getting that job.  If you answer “NO” and they do a background check, you’ll be fired before too long.  Here’s where the scam comes into play.  The courts created this thing called EXPUNGEMENT.  In essence, if you apply and are granted expungement, you can legally say “NO” on the job application because your felony magically disappears.  

Well, actually it doesn’t.  There is forever a record of your felony on the files with the state Attorney General.  Yeah, tell me about it.  All it would take to get you fired is a call by the employer to the state Attorney General, pay a fee (to get a copy of your record), and you’ll be fired post haste – because you technically lied on your job application and you technically lied on your job application because you had applied for expungement and the courts had said if you expunge your felony that you can technically lie on the job application.  Yeah, it’s not so – the courts and attorneys have lied to you and the reason they lied to you was because it allows attorneys to charge you upwards of $1,500 to file the expungement on your behalf.  One thousand five hundred dollars to file one (1) legal form and attach a letter saying you’ve been a good boy or girl and are sorry for what you’ve done and that you’ll never do it again.  Bottom line, expungement is a SCAM of the worst kind because the courts and lawyers are behind it all the way.  If you still want to try your hand at expungement, might I point your attention to The Criminal Law Handbook by Nolo Press or California Criminal Practice, Motions, Jury Instructions and Sentencing by West Publishing (pay particular attention to Chapters 24 and 59).
 
The best advice I can give you is to just listen to your momma who always seemed to know what was going to happen long before it happened.  Yep, like momma always said, be sure to wear clean underwear before you leave home, be home before it gets dark, and if it’s too good to be true, it is.  Words to live by.

Got Questions?!

As a law librarian, I get asked lots and lots of question.  Some questions are are pretty straight forward like “Where can I find books on landlord tenant?” or “Where’s the bathroom?”   Some questions are out in left field such as “Do you have any blue books?” or “I can’t sleep here?” or “What happens if I don’t eat?”  SOME questions are just borderline crazy like “If I hop on my one good leg, how long will it take me to get to the hospital?” or  “How much fiber can I get if I only eat A through C in the dictionary?”  Yep, we get all kinds of questions at the law library.

Maybe you have a question for the law librarian. Sure you do.  For instance say you have a neighbor who loves to play bongo drums at all hours of the night (particularly right when you’re trying to go to sleep).  The question in this scenario might be:  How can I get my neighbor to stop playing his bongo drums at all hours of the night?  or Are there any laws the prohibit playing drums after 10:00PM?  While each state has it’s own rules dealing with neighbor rights, what you might consider doing is to go to your local county law library and take a look at Neighbor Law by Nolo Press.  It’s an easy to read resource that is not state specific (meaning it includes information that can be applied in any number of states).  See how easy this question/answer thing is?  Let’s try a few more…

Let’s say you’re a parent and one of your kids is having a divorce.  As is the case in most divorces, one of the parties tries to use the children in a divorce as pawns and s/he tells you that unless your kid agrees to all of their (excessively burdensome) terms, that you will no longer be able to see your grandchildren (and believe me, this happens all the time).  So, in this case your question might be:  How can I secure my rights as a grandparent?  While each state has it’s own set of rules dealing with grandparent rights, what you might consider doing is going to your local county law library and take a look at Grand wishes by Susan Hoffman (Collegare Press).  This is a great resource dealing with grandparent rights and covers :

  • If you have lost access to a grandchild;
  • How to re-connect with parents and grandchildren and avoid escalating estrangement;
  • Understanding Grandparent Rights and children’s rights
  • How to become an empowered grandparent;
  • Learning tips to achieve balance during crisis and ease stress;
  • Learning how to build your own support network.

Is that cool, or what?!  I mean, this is a really great book and it walks you through some pretty difficult situations.  Let’s try one more.

Say you’re feeling a bit oppressed at work.  Fact is, your boss has this thing with smacking your backside everytime s/he passes by.  Co-wokers tell off color jokes when you’re in the room.  You’ve asked it to stop and your requests are denied.  Suddenly, a manager makes a pass at you and tells you that unless you comply you’ll never be promoted.  What are you going to do?!?  Yeah, that’s a real doozy and we get guys and gals in here all the time with these sorts of problems.  In this scenario, the question might be:  What resources do you have to help me understand my rights in the workplace against harassment?  As it turns out, we do have a number of resources that can help you out (both state specific and general law).  One that stands out in my mind is called Workplace Harassment Law (by BNA Books).  This is a great resource that deals not just with sexual harassmant but it also talks about discrimination and other problems in the workplace.

I could go on and on with questions and answers but I guess the moral to this story is if you have a question, I’m betting your local county law librarian has an answer – and not just any answer but the single best answer that will answer your most hard-pressed question…because that’s why where here – to help you help us help you!

Why?

Have you ever wondered why things are the way they are?  For instance, at a movie theater which arm rest is yours?  Why do people think that swaying their arm back and forth would change the direction of a bowling ball? Why is it that everyone driving faster than you is considered a raving lunatic and everyone driving slower than you is a moron?  Why is the Lone Ranger called ‘Lone’ if he always has his Indian friend Tonto with him? Why is it that when we “skate on thin ice”, we can “get in hot water”?  Why does caregiver and caretaker mean the same thing?  Is there ever a day that mattresses are not on sale?  And finally, why doesn’t Winnie the Pooh ever get stung by the bees he messes with?

Yep, sure are a lot of questions out there.  One question that someone asked me the other day is, “Why bother learning how to do legal research?”  I can answer this in three steps. 

  • First, we the people agreed (at one point) to be governed by a set of laws. 
  • Second, if “we” agreed to be governed by a set of laws, don’t you think it might be important to know what those laws are?
  • Third, if it’s important to know what those laws are, then might it be important to know how/where to find those laws to know what they are and how they are to be applied?   

The answer to all three statements, is, of course, yes, yes and yes.

To see how this all works, this guy came into our law library the other day.  Seems he had been arrested and charged with violating the local graffiti law (i.e. he got caught tagging the wall off a freeway).  Now, he knew (or suspected) that there was a law that applied to tagging and graffiti – but he figured it didn’t apply to him.  So, knowing that he did not where to look for these laws, so he came to me – his friendly neighborhood law librarian to help him.  I first went to the local county ordinances, then the city municipal codes and finally handed him the  California Penal code as it related to graffiti.  20 minutes later, fully versed in the law of graffiti, he discovered that 1) there were a bunch of laws prohibiting graffiti and 2) they ALL applied to him. All of them.  Humbled and educated, he went his way and, I suspect, vowed to never tag (or get caught) again.

I suspect, the moral to all of this is that if you don’t know where to find something, ask – because odds are your local law librarian has been asked the same question 50 zillion (that’s right, a zillion) times and knows what it is you need long before you think you’ll need it.  Yeah, we are that good.