In UK violent rape will carry tougher penalties.

In England and Wales policymakers propose a fifteen year minimum jail time for conviction of violent rape crimes. The Guardian U.K.  reports that the Sentencing Council responsible for research, revision, and establishment of punitive sentencing has made its first recommendation. The occurrence of sex crimes has swelled in the last decade and the sentencing committee spent two years reviewing penalties concerning sexual offenses. The outcome of years of work appears to address the most heinous cases of rape-instances where severe violence is employed. The committee should be applauded for taking up the issue of sex crimes, which is an unusual but much needed course of action.

Lawmakers in the United States should should follow the lead of our common law allies. Crimes against the most vulnerable members of the population should be prosecuted aggressively and carry heavy penalties. If rape is not a federal crime, it should be. Louisiana should lead progress and enact criminal statutes that balance the victim’s rights, as opposed to having knee-jerk reactions that place fault on the victim. Admittedly, there is much more work to do ahead in the U.K., but at least putting the issue on the table that violent rape is absolutely intolerable is step in the right direction.


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.

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.

2 DnD Transparent Ltrhead


Customer slips on soda in the store, sues Pepsi and CVS.

According to the Louisiana Record a local resident is suing international beverage company Pepsi together with CVS pharmacy, after allegedly falling in a store as a result of spilled soda on the floor. At first impression it may seem strange to sue the store and the beverage company. But this is the typical “shotgun” approach that crafty lawyers have been taught since the first year of law school. As tenuous as it may appear, a lawyers’ standard approach is to sue every party that has any perceived connection to the complaint. The theory being that it is better to have them and not need them, then vice versa.

Thus, in an abundance of caution a Louisiana lawyer includes the pharmacy and the manufacturer (or distributor) of the soft drink on which the plaintiff allegedly fell. Of course, this will probably require the showing that Pepsi knew or should have known that its product would enter the stream of commerce in this state. Probably not too difficult, but that won’t keep Pepsi on the hook that easily. Federal Courts are notoriously conservative when it comes to personal injury cases. In a state where “slip and fall” cases have a pretty hefty burden of proof, to keep Pepsi in the game the plaintiff’s will likely have to show Pepsi knew or should have known that it was manufacturing or distributing a faulty product. And further, that if Pepsi had exercised reasonable care it could have prevented the product from creating an unreasonable risk of harm to the end consumer.

The focus of this post intentionally omits the mention of CVS but rather concentrates on Pepsi for illustrative purposes. This is purely because I find the issue of Pepsi’s product liability (or not) more interesting than the merits of a “slip and fall” case. As always, comments are welcome and appreciated.

When you get swindled under Napoleonic code…

To outsiders our customs may be perceived as bizarre and our laws byzantine. Our state is divided by Parishes not Counties. We have neutral grounds not medians. And quite significantly, we govern by civil law not common law.

Intrinsic to a discussion of civil law is the topic of the Napoleonic Code. Its a dominating theme hammered into our collective consciousness. I still remember reading, and then watching A Streetcar Named Desire. The scene where Stanley Bekowski Kowalski (played by Marlon Brando) expresses what is his understanding of civil law:

“Now just let me enlighten you on a point or two… Now we got here in the state of Louisiana what’s known as the Napoleonic code. You see, now according to that, what belongs to the wife belongs to the husband also, and vice versa… It looks to me like you’ve been swindled baby. And when you get swindled under Napoleonic code, I get swindled too and I don’t like to get swindled…”

Except, this is not entirely the truth of the matter and legal theorist who read this discourse may be puzzled. Although seemingly innocuous, it is my opinion that statements such as the quote above, raise more questions than answers. Thereby, perpetuating the allure that surrounds our civil law system.

Does Louisiana have the Napoleonic code? No, but at one time it did. Does “what belongs to the wife belong to the husband, and vice versa”? Yes, Louisiana is among the 8+ community property states. However from a modern perspective Stanley has oversimplified the rule as it currently exists. And while the Napoleonic Code is a fun word to say, it is not the sole body of legal work that was the precursor to Louisiana law.

Much of Louisiana’s law is influenced by the Siete Partidas. Originally written between 1256-1265 the legal text is a compilation of laws, divided into seven parts.  Described as a “humanist encyclopedia” it addresses philosophical, theological, moral, and religious topics. Without expounding much further, there’s your history lesson for the day.

Sometimes it’s the little things

If this blog has any readers, then it should be evident that I’m big on handing out example forms. I will admit, the previous forms have been more complex and absolutely do not substitute actual legal advice; however sometimes its the simpler things that matter. A colleague asked me for a sample motion to reset the other day. So, if you’re new to the practice or just curious, here is an example form of a motion to reset.

Unprotected Speech: A Footnote to the First Amendment

Although the First Amendment preserves several rights, the one of import for this post is the freedom of speech (FoS). The FoS is one of the prized rights retained by the people, and there is a heavy burden on government action that infringes on this right. There are many tests and legal presumptions (also could be the subject of another blog), but ultimately not all speech is treated equally. Basically, there is protected and unprotected speech. The classic example of unprotected speech is the person who yells “fire” in a crowded movie theater, when there is in actuality no fire at all.

So, here is a laundry list of the various forms of unprotected speech: speech that 1) creates a clear and present danger of imminent lawless action; 2) constitutes “fighting words” as defined by a narrow, precise statute; 3) obscenity (speech, film, etc.); 4) if it constitutes defamation; 5) or violates regulations against false or deceptive advertising.

This is a very basic summary of the exceptions to the First Amendment. There is a plethora of case law on what the court defines as clear and present danger. You will also notice that “fighting words” depends on a “defined, narrow, precise statute.” In summary, while Americans enjoy freedom of speech remember that it can be curbed within reason.