Peremptory challenged.

The jury selection (or voire dire for you lawyers) process is both an art and a science. In its online journal the ABA recently reported an incident where a defendant purportedly had an encounter with one of the jurors sitting on the jury panel in his own trial. The juror in question is said to be working as a lawyer in corporate finance and securities as a “partner in an elite Manhattan law firm.” The juror-lawyer is alleged to have flipped off the defendant while catching a taxi cab leaving the court house, ostensibly because the defendant was trying to steal her ride. After giving an angry look at one of the attorneys the defense objected to the juror’s impartiality .

The first question I have is why is a lawyer sitting on a jury? A not-so unspoken trial strategy among lawyers if to remove all the attorneys from the jury panel. The only exception that I can think of would be a case that involved highly technical or elaborate legal theories where an attorney-juror may be beneficial. Even under those circumstances it would be a risky move. Needless to say the article reports the juror was later released, it is unclear if her removal was connected to the glaring look. Read more  about the incident on the ABA’s online article: “Lawyer who flipped the bird at defendant is removed as juror; was cab conflict the reason?”


Cuneiform “receipts” predate writing, still a scientific mystery.

One of the earliest known forms of writing is what scientist (or according to Wikipedia) call cuneiform. From my memory of studying linguistic Anthropology, the emergence of language is often associated with early commercial transactions. Merchants would trade over long distances through an intermediary (or several messengers) who finalized the transaction by delivering the goods together with a “receipt.” The “receipt” has been described as a sealed container that could not be tampered with inconspicuously. For example, if a purchaser was buying twelve cows he would expect to receive a tamper-proof vessel with twelve objects representing the twelve cows purchased.

Naturally, it piqued my interest when I stumbled upon this article about researchers in Mesopotamia studying “clay balls” used for record-keeping, 200 years before writing was invented. The article describes the balls as the “very first data storage system” and as sealed “envelopes” containing a variety of geometrical shapes. It goes on to mention these clay balls are believed to have been used to record economic transaction, yet the utility of the clay balls is still a mystery given the fact they predate the existence of writing. Read more about why scientist are having trouble deciphering the “code” found inside these “receipts” on the Live Science website.

When an unstoppable force meets an immovable object: the intersection of law and technology.

In May the ABA posted an article about the various advantages legal practitioners hope to gain by leveraging technology. No doubt, standing by the trendy new mantra “access to information is access to power.” Lawyers, law firms, and search engine titans are increasingly mining information resources, crunching numbers, and analyzing data for the purpose of strategically implementing it in the legal field. The result is interesting to say the least, and if proven to be pragmatic, will likely spearhead the trend of perusing data troves for lawyering. From reading the article it appears the lion’s share of practical application of all this information is in the form of predictions. One such example is using data mining to help predict whether prospective hires will be a “good fit” for a company (One hopes this will improve the arena of law office management beyond the mere Google, Facebook, and Twitter profile searches).

Other helpful predictions include charting what the “going rate” or the standard fee is, to ensure that a firm’s rates are “competitive.” The article even references information services that predict the viability of a winning (or losing) lawsuit, to predicting whether a particular motion will be granted or denied. Perhaps future technology developments will predict how jurors will decide in a particular case. One cannot help but ask what impact this information will have on discovery procedures.

At any rate, watching the intersection of technology with the legal industry always has its redeeming qualities, even if it is purely for entertainment purposes. Whether the edge of having access to “big data” will be a privilege vested with a few larger firms with bigger resources. Or whether the information revolution will trickle down to meager lawyers that still have to pick their cases manually (or on their own merits); we will have to see.




Mid City Porch Crawl Saturday October 19.

In New Orleans the month of October is always filled to the brim with social engagements. One of my absolute favorite October events is the Mid City Porch Crawl. The crawl begins at Finn McCool’s Irish Pub at 3701 Banks Street and kickoff is set for 5 p.m. For more information on the vendors, the food, the drinks, the price, and any other questions check out their website.

TIP: You can take the streetcar to avoid searching for a parking spot.

Does the grocery store have a duty to secure its buggies?

Early on law students are exposed to the concept of “reasonably foreseeable.” It will be interesting to see how this plays out in a case recently filed in Orleans Parish by a woman who was in an automobile accident she alleges was caused by a stray shopping cart. The plaintiff contends that the grocery store failed to make appropriate security measures which resulted in the basket rolling off the parking lot and onto the highway where she was driving. Doubtless, the issue will arise whether Winn-Dixie knew or should have known that its baskets were a substantial factor in causing an unreasonable risk of harm. In this case, whether it should have known the basket could ultimately end up in the highway, and whether it could have prevented the accident had it exercised reasonable care.

Whether or not Winn-Dixie has such a duty is not an ironclad rule. Although, theoretically our civil law system has a code which we rely upon in instances of tortious infractions, the outcome will be heavily fact intensive. What measures were taken to avoid the situation, by both the plaintiff and the defendant? Did Winn-Dixie have actual knowledge that its baskets were exiting the property (either intentionally or negligently)? The answer will have to be decided by a judge summarily, or perhaps even by twelve jurors. The result is guaranteed to be interesting.


Driver-less cars: not if but when.

In 2007 I first saw an article in Science Daily advocating the possibility of cars that drive themselves. Always cognizant of the inherent danger we face on a daily basis-through driving our vehicles-the prospect of safer smarter cars resonated within me. I carried this in the back of my memory, without circumstance, until the past couple years. Notably, with the relatively recent news headlines that Google has developed such a vehicle. According to what I’ve read, this cutting-edge vehicle (Too bad the name Google Drive is already taken) is no longer beyond the realm of possibilities, but that the question seems to be if rather than when. While we are closer than ever to creating the technology to make the “driver-less car” possible, the concept is still very foreign to many people. I still remember my 65 year-old neighbor gawking at the idea of a car that he couldn’t “hit the gas” in.

After thinking about this prospect for a few years, some ideas have come to my mind. First, relinquishing control of a particular mode of conveyance is not so alien. Every subway, bus, taxi, plane, or boat that I’ve ridden in has always been controlled by someone other than myself. Obviously, in a personal motor vehicle the “chauffeur” is not a human being but the computer or technology itself. Consequently, this raises even more complex issues regarding insurance, fault and liability.

A recent column in Bloomberg News juxtaposes the speed of growing technology with the lag of regulations. Technology is perceived to be growing at an exponential rate, while regulators and legislators are mere human beings. Laws are subject to the democratic process, requiring votes, committees, tabling, quorums, and convening on a quarterly basis. These technologically advanced vehicles are developing at a rate that is unmatched by which our government is capable of reacting. Bloomberg even suggests the federal government step in to regulate these innovations. This strikes directly into the heart of issues of federalism and state sovereignty. Traffic laws are traditionally considered “police power” which the United States Constitution vests in the authority of the states. The Bloomberg article hits on all these points and more, including the federal government’s role in overseeing vehicle safety, the states’ regulation of insurance and licensing of drivers, how to assign liability and responsibility to inanimate objects rather than a person driving.

The future of driver-less cars appears to be certain, even though the logistics haven’t been hammered out yet. Fortunately, regulators are embracing innovations which could revolutionize the safety of the automobile industry. I look forward to learning more on this polarizing and multifaceted subject as it develops.


Changes to how we do things around here: default judgments

As mentioned in a previous post, changes to the code of civil procedure have affected not only the summary judgment, but also how default judgments are procured. Louisiana Code of Civil Procedure now requires sufficient proof to establish a prima facie case to be admitted into the record, before a confirmation in granted. Although it sounds like a nuance, the previous language only required proof sufficient to establish a prima facie case, without requiring it to be put in the record. This was problematic on appeal, since the presumption exists that a prima facie case was made in the lower court upon granting a default. Logically, an appellant that was defaulted has an unfair burden if it must overcome prima facie proof that was not privy to the record. By legislating an amendment to the rules of procedure I think lawmakers took the correct course of action.

For lawyers confirming defaults, be aware that you should prosecute your case like you would any other judgment. That is, by creating a record and submitting documentary evidence and even testimony if possible. Also, it is uncertain whether this change will affect the ability to obtain a default judgment by mail. Despite the change in the rule, the policy at my firm forbids obtaining “mail-in” defaults. Our practice regarding default judgments is, and has always been, to conduct a trial (regardless of how small or short it may be) and produce witnesses and documentary evidence for the record.

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