Jimmy StewartThis month I am flushing the format to talk about jury duty. I recently got selected to serve on a jury in a civil case. The experience fascinated me because, as a civil trial lawyer myself, it gave me the opportunity to see a trial from a juror’s perspective in the courtroom and in the jury room. My case lasted four days. Here are several observations to keep in mind for the next time you find yourself as a party in a trial.

It is a Civic Duty

When one of your friends tells you they received a jury duty notice in the mail, it’s usually not with a joyful tone. Rather, it’s with an exasperated huff. I think there is a simple explanation for that reaction: people have a daily routine, with existing obligations, and jury duty disrupts their schedule. But once selected, my fellow jurors took their responsibility seriously. Litigants should keep in mind that jurors want to see that the parties are taking the case as seriously as they are.

Courtroom Technology: An Asset and a Liability

Today’s technology has radically changed the way litigants can present their case. One hundred years ago, parties presented their evidence through oral testimony, usually without any documentary evidence, and almost certainly without any visual aids. Now parties can show videos, photographs, and documents and can “self-edit” to show the jury what evidence is important to their side of the case. Parties should take advantage of these capabilities. Technology is a “change of pace” in the courtroom and keeps the jury attentive. While jurors take the case seriously, it is tough to sit in a chair for a couple of hours listening to a lawyer and a witness talk back and forth –especially when the lawyer is sitting in his or her chair as well. Also, some jurors may be visual learners. Putting the document up on a screen, instead of simply reading the language, may help a juror better understand your case.

A word of caution about technology in the courtroom. If you are going to use it, you need to make sure it works in the courtroom before trial starts, and you need to know how to use it. Technology problems are distracting and kill your momentum. Think of yourself as the director of a movie – you want to show the jury the final, finished product. To put it another way, follow the Scout Motto: Be Prepared.

Jury Deliberations: Behind the Curtain

When the jury goes to deliberate they are given the “jury charge,” which contains the questions they are asked to answer. The jury charge also contains instructions and legal definitions. Sometimes these questions can be complicated. Nonetheless, it is important to know that jurors will make every effort to “get it right” with their verdict. This doesn’t mean they will decide the case based on sympathy, bias or prejudice. Rather, juries seek to render a verdict that is based on a common sense assessment of the facts.

Tilting the Scales in Your Favor

My service has reconfirmed my belief that the jury system works. If you end up as a party in a jury trial, respect the jury’s decision no matter the outcome. And if you are selected for jury duty, thank you for your service.

Thursday before Super Bowl XLIX in Phoenix Ima Goen Nomattawatta, a huge Patriots fan, found an online broker Izzure Scalp with Super Bowl tickets for $2,500 apiece. Not believing that he could get 4 tickets at only $750 above face value, Nomattawatta quickly called three buddies, found flights and non-refundable hotel rooms, and all four headed for Phoenix. Although the Scalp promised ticket delivery to Nomattawatta’s hotel on Saturday, on Friday afternoon Scalp reported that he did not have tickets, and would be refunding the purchase price pursuant to their online contract. Angered at Izzure Scalp, Nomattawatta and his friends threatened to sue Scalp for their tickets, airfare and hotel accommodations. Does Izzure Scalp have any liability other than the cost of the tickets?

The “Fine Print.” No, probably not. Remember those mile long, unread online “terms and conditions” that you see when buying a smartphone, television, or new company service? Like you, I generally skim the document and routinely check the box that I “read, understand and agree” to the terms and conditions. Important contractual language in those online approvals include limitations of liability, arbitration agreements, and where you can sue provisions. Generally they are enforceable unless the consumer proves they are unconscionable or there is a public policy prohibiting them.   When Nomattawatta bought the tickets online, the broker’s terms of service limited the broker’s liability only to what Nomattawatta paid for the tickets.

Limitation of Liability Benefits. Companies include limitation of liability provisions for multiple reasons, including prohibiting certain types of damages such as punitive damages, capping damage exposures to the contract’s purchase price and limiting risk exposure to money damages, and eliminating non-monetary relief, such as an injunction. These provisions can substantially limit a company’s liability exposure. In fact, in one reported instance a company’s liability exposure was reduced by 90% because of the clause.

Tilting the Scales in Your Favor. Consider reviewing your company agreements with your attorney’s assistance. Limitation of liability clauses are common in many different types of contracts and across many industries. Generally-speaking they are more likely to be enforceable when found in contracts between sophisticated parties and employment contracts. Inclusion in online terms and conditions protecting vendors who do not have product needs to be addressed; as yet, default is to the ticket seller. It is not just advisable, but highly recommended, to include these provisions in your contracts.

Remember, though, that your customers are your company’s lifeblood, and treating them fairly will keep them around. This was exemplified during the Super Bowl where ticket brokers were simply refunding the purchase price, while others would honor their verbal agreements to provide tickets at the agreed-upon price.

Cyber terrorism, North Korea, Sony, extortion, free speech, The Interview, international relations, journalistic ethics, cyber security… can it get any better than this?

Implausible – a C grade comedy movie The Interview about two hapless TV journalists recruited by the CIA to assassinate a sitting world leader North Korean Supreme Leader Kim Jong-un.

Appalling – Sony’s capitulation to terrorism and extortion and the horrific precedent leaves speechless any advocate of free speech. Who would have thunk it?

What Happened?  Poor judgment closely followed by really bad judgment.

Poor Judgment.

Imagine a large Chinese film studio produces a comedy where President Obama is mockingly portrayed by a bumbling black buffoon of a man who has no business running a country and is flamboyantly assassinated. Americans would be rightly offended and would cry racism followed by widespread condemnation of both the studio and the movie. Although Americans may accept lampooning themselves, much of the world does not. This was not the first depiction of the killing of a living international leader: Charlie Chaplin’s “The Great Dictator” about Adolf Hitler, and “Team America: World Police,” about former North Korean leader Kim Jong Il. The difference? Now you can attack the film studio without bombs and guns.

Really Bad Judgment.

Capitulating to demands of “someone” which, by many accounts, may be multiple groups posing as the “Guardians of Peace.” Even President Obama chastised Sony as doing “the wrong thing when it backed down and pulled The Interview in the face of North Korean hacker threats.” Ignoring the $44 million to produce the movie, by caving to the “Guardians of Peace” Sony emboldens other hackers to harass companies with the expectation of similar results.

Proposal:

Win-Win for Capitalism and Free Speech Sony could have released the movie online through its own streaming service Crackle and distributed it through Netflix, Hulu, Vudu, iTunes, or any one of the other online video services. By reaching more people, safely, Sony could potentially make more money than in theaters. Many would have watched / bought online just to snub the North Korean hackers. And, in doing so, Sony could possibly turn negative press into positive PR.

Good Call – The Theaters.

The theaters made the right decision not to show “The Interview.” Although the Department of Homeland Security dismissed the emails as not credible, the theaters were forewarned. As Tilting reported in a January 2013 article “Have Gun, Will Travel: Owner’s Liability to Patrons for Violent Acts,” the best, and perhaps only, viable defense to the movie theater that suffered a mass shooting was that there was no past history of violent acts and no violence had been threatened.

Tilting the Scales in Your Favor.

Better to use sound judgment at the beginning, than try to catch up later. Poor judgment can be forgiven. Poor judgment followed by really bad judgment is hard to overlook.

HAPPY HOLIDAYS and a PROSPEROUS NEW YEAR!

Previous Tilting Articles:

Last month I wrote about employers’ potential liability for Ebola in the workplace.  Now state governments are seeking to quarantine citizens to protect against the possibility of a health epidemic.  An inherent conflict exists between individual freedoms and the government’s interest to protect public health. Can the government quarantine an individual? What happens if the individual ignores the directive?  We got some answers to these questions today.

Even though she tested negative for Ebola and is not showing any symptoms,  a nurse returning from West Africa to treat Ebola patients was ordered quarantined by both New Jersey and Maine.  The nurse is now threatening to sue for what she calls a violation of her “basic human rights.”  Earlier today Maine asked a court to order the nurse quarantined because she violated the state’s quarantine order by riding her bike in public.

The quarantine orders from the governors of New Jersey and Maine appear to be a reaction to the CDC’s missteps in Dallas, especially allowing a nurse who had treated “patient zero” to fly when the nurse told the CDC she had a fever.  At a hearing today, the Maine court refused to quarantine the nurse, but ordered her to self-monitor, coordinate all travel with public officials, and immediately notify officials of any symptoms.

The court’s decision is spot on.  I’m a proponent for protecting the public health, and the government should do everything to ensure that an Ebola “outbreak” doesn’t occur in this country. Yet, here both sides should use some common sense.  Maine doesn’t need to lock this nurse in her home for 21 days, especially when she’s not showing any symptoms and tested negative for the virus.  The nurse should be allowed to go out in public, but she should take steps to minimize her interaction with people (like yesterday when she rode her bike on a dirt path to avoid coming in contact with people) and should take other steps to regularly monitor her condition so that, if she does show symptoms, she can be immediately treated and isolated from the public.

Individual rights and community concerns can and should be reasonably balanced, particularly when there is little to no basis for real concern.

I.M. Dense, a stockbroker employed by BI Lough was driving to a non-business event when he struck and injured a motorcyclist. On personal time, in a personal vehicle and using a personal cell phone, Dense admitted that he was responding with text messages to “cold call” responses from earlier in the day. “Cold calls” are a common practice at BI Lough. Did I.M. Dense break the law? Even if he did not commit a crime / violation, is he responsible just for being on the phone? What about Dense’s employer BI Lough?

Texting Against the Law?

Maybe. It depends upon where I.M. Dense was and how old he is. If he is under 18 or in a school zone, he broke state law. Texas state law prohibits anyone under the age of 18 from driving and using wireless communications devices or from using a handheld device in a school zone. If I.M. Dense was texting and driving within the city limits of any one of 23 Texas towns including, for example, Austin, El Paso and San Antonio, he violated a city ordinance. Being ticketed for violating a city ordinance does not carry the same penalties as a state moving violation that would affect Dense’s driving record.

Continue Reading Texting Trouble: Who’s Liable?

Last month one of our lead articles was Cyber Security: Forewarned is Fair-Warned.

Last week the New York Times published an article reporting that at least 1.2 billion usernames and passwords were hacked by a Russian cybercrime group by the name of CyberVor from upwards of 420,000 distinct web sites.

A very interesting CNN article on cyber security acknowledges the breach, identifies Hold Security as the company that found the hack and suggests they may have a commercial interest in the hack report. To all of this the CNN author Chester Wisniewski says: Yeah, so?

Wisniewski suggests that Hold Security is provoking internet users to panic and rush to change all their passwords, or better yet to accept its offer to let you know if you’ve been hacked for a mere $120 apiece. He goes on to suggest that the cyber security criminals only have cryptic representations of the passwords, or partial passwords at that.

Weighing In. Either way, isn’t it about time you undertook a regular routine of changing your passwords? Particularly those that have access to information that you would just as soon not share with the world? At the very least, let’s all use different passwords depending upon the importance of the access… and get rid of “password123”!

When Wei Wong, owner of Sushi Mushi, a popular Japanese food bistro in Texas, installed a phone add-on to take credit and debit card payments straight from his employees’ phones, his revenues skyrocketed. Yesterday the Feds told him that his customers’ credit and debit card numbers were posted for sale on an underground website. Malware planted in his employees’ point-of-sale telephone systems snared over 10,000 card numbers, encrypted PINs, and CVV codes. Every hacker in the Ukraine now wants their own missile launch system. Is Sushi Mushi to blame?

Continue Reading Cyber Security: Forewarned is Fair-Warned

Regardless of their personal stance on any hot-button social issue, most business owners do not want their place of business to be the focus of demonstrations on that issue – wisely so, because rarely does being the focus of a political demonstration go hand-in-hand with making money.  

However, recently some gun enthusiasts in Dallas put Chipotle in the spotlight by openly carrying loaded semi-automatic rifles – commonly known as “assault rifles” – into a downtown Dallas area Chipotle’s restaurant. Chipotle released a statement asking customers not to bring firearms into their restaurants, reading in part:  

Recently participants from an “open carry” demonstration in Texas brought guns (including military-style assault rifles) into one of our restaurants, causing many of our customers anxiety and discomfort. Because of this, we are respectfully asking that customers not bring guns into our restaurants, unless they are authorized law enforcement personnel.  Continue Reading Open-Carriers Pose a Threat to Restaurants with Liquor Licenses

Special thanks to Gray Reed’s Drew York for this blog contribution.

Bedder Sailz, a salesman for Orange Computers, Inc., lives in Seattle, Washington, and frequently travels on business. After successfully closing a computer deal in Dallas, Sailz catches East-West-Wings (EWW) flight #101 from Dallas home to Seattle. When the plane’s front wheel collapses on landing, Bedder sustaines back and neck injuries sending him to a Seattle hospital.  To recover his medical expenses and lost wages, Bedder files suit – not in his home state of Washington, but in California – against EWW, a Texas corporation headquartered in Dallas, alleging that EWW’s flights to leased gates at LA International Airport were “continuous and systematic contacts” permitting Bedder to sue there.  Where should EWW be sued? In Dallas, its HQ? In Seattle, where the wheel collapsed? Or, in California, where Bedder thinks he will get a more sympathetic jury?

Not surprisingly, Bedder’s lawyers prefer to “forum shop” to file his claim in California, believing that California courts are most friendly to his claim. EWW argues its “home court” of Dallas– where a jury is more likely to be friends, neighbors and family members of employees and happy customers.

Continue Reading Avoiding Judicial Hellholes

Aaron Elvis is a world-renowned chemist.  His latest paper explaining the chemical origins of life has received unprecedented acclaim in the scientific community.  However, there is a small problem.  Elvis manipulated some of his test results upon which the paper was based, and now one of his graduate students is about to expose Elvis as a fraud.  Rather than suffer through this career-ending humiliation, Elvis plots to fake his own death while on an Alaskan fishing trip.  Later that summer, Elvis “disappears”, and all that is found is a fishing boat floating adrift in the Prince William Sound along with a short suicide note describing his self-inflicted drowning.  Elvis then slips off to parts unknown and is never heard from again.  Has Elvis committed a crime?

What is Illegal About Faking Your Own Death?

While it is likely not a crime for Elvis to commit pseudocide (fake his own death), it would be difficult for him to eventually not run afoul of some law.  Obviously, Elvis’s pseudocide would be unlawful if it were done to collect insurance proceeds, evade a debt (e.g. taxes or a mortgage) or escape criminal prosecution.  Likewise, it would be unlawful for Elvis to process a new fake identity with a governmental agency.  However, so long as he breaks no other law, Elvis is within his rights to vanish without a trace.

Do Insurance Companies Look Out for This?

The Coalition Against Insurance Fraud states that “life insurance companies are on high alert for fake deaths” and that fake deaths happen often enough that insurance companies maintain investigative portfolios to “track down the scammers.”  According to the CAIF, “the effort to screen out potential fraud begins soon after a person seeks a life insurance quote.”

What’s the Worst That Could Happen?

Individuals who fake their own death and later reappear can often be saddled with law enforcement’s search and rescue costs.  Listverse provides an interesting look at the Top 10 cases of faked deaths and conspiracy theorists like to point out that the Lloyd’s of London life insurance policy on Elvis Presley was never cashed.  Those planning a disappearance might consider Doug Richmond’s How to Disappear Completely and Never be Found which describes “planning a disappearance, arranging for new identification, finding work, establishing credit, pseudocide, and more.”