The Molly Maguires

In 1970, my mother asked me to accompany her to see the movie The Molly Maguires, featuring Sean Connery who played the character of John Kehoe, “The King of the Mollies”.  It had been almost 100 years since the Reading Railroad, which owned substantial interests in coal mines as well as railroads, employed its private Coal and Iron Police and the Pinkerton Detective Agency to crush labor agitators among the oppressed Irish coal miners in Pennsylvania.  There was often trouble in the coalfields.  Irish miners had no rights.  Attempts to organize and strikes were crushed by violence and starvation.

The Reading Railroad corrupted the criminal justice system in Pottsville, Pennsylvania, supplanting the local authorities.  The Railroad, a private business, “investigated” alleged crimes with its private police force and prosecuted criminal cases itself.  It rallied ethnic and religious hate against Irish Catholics to obtain convictions and hung twenty Irishmen, including Sean Connery’s character John Kehoe.

Kehoe’s lawyer was my mother’s great uncle, Martin L’Velle, and he was no push over.  L’Velle was sergeant major of his infantry regiment in the Army of the Potomac and he won a battlefield promotion to lieutenant before the Confederate surrender at Appomattox Court House.  It did not matter.  The Reading Railroad rigged the system against the Irish coal miners so Kehoe and nineteen other Irishmen died on the gallows. Carbon County Pennsylvania judge, John P. Lavelle (no relation to Martin L’Velle) condemned the corruption of the criminal justice system writing, long after the events, that:

“The Molly Maguire trials were a surrender of state sovereignty. A private corporation initiated the investigation through a private detective agency. A private police force arrested the alleged defenders, and private attorneys for the coal companies prosecuted them. The state provided only the courtroom and the gallows.”

A century after John Kehoe was hung, Pennsylvania Governor Milton Shapp, gave the final and posthumous victory to John Kehoe and his lawyer my great great uncle Martin L’Velle .  Kehoe was pardoned.  The governor remarked that the Molly Maguires "were martyrs to labor and heroes in the struggle to establish a union and fair treatment for workers.  It is impossible for us to imagine the plight of the 19th Century miners in Pennsylvania's anthracite region and that it was Kehoe's popularity among the miners that led [the Reading Railroad] to fear, despise and ultimately destroy him".

Martin L’Velle is the first lawyer in my family in America but since his time there have been many others.  My cousin Francis McGill graduated from law school in 1956 and there is an endowed scholarship at Villanova Law School in his name. My brother Raymond graduated from law school in 1965.  After his service in the Marine Corps in World War II, my uncle Joseph Burke practiced law in Schuylkill County Pennsylvania.  His father, my grandfather, Patrick Henry (PH) Burke registered as a student of the law in 1899 and was admitted to practice in 1906.  He practiced law in Shenandoah Pennsylvania, where most of the scenes in The Molly Maguires took place.  PH’s older brother Martin was admitted to practice in 1892.   There are very memorable examples in American history of how lawyering was a way up and out of poverty and misery and so it was in my family.

PH, my grandfather, did not have a college education and he did not go to law school.  After elementary school, he got his higher education in the coal mines in the late 1800s.  As a breaker boy, PH worked long hours, six days a week, in very unhealthy conditions, picking slate from the coal as it speed down the chutes under his legs.   He dug himself out of these miserable conditions to become a lawyer and eventually became the president of the Miners National Bank of Shenandoah Pennsylvania.  

I became a lawyer in 1973, almost one hundred years after the events portrayed by Sean Connery in The Molly Maguires.  I am continuing the line begun by Martin L’Velle.  After me, there have been many more lawyers in my extended family.  Neither of our children are lawyers but our son-in-law Richard Parry is admitted to practice in the United Kingdom, in Grand Cayman and in California.  

I am proud of my family’s lawyer predecessors and of all of the many lawyers in my family who are practicing law today.  I am grateful for my career, my place in the line of lawyers going back to Marin L’Velle and the Molly Maguires.  I recognize the privilege that I live in a land, with all of its imperfections, that is still striving for a more perfect justice, under the law.

I want to thank our readers for the self-indulgence and the diversion of this personal reminiscence and I hope that you will share a little of the joy in my remembering.

Content prepared by Edmond McGill. © Edmond McGill, 2017

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

To Arbitrate Or Not To Arbitrate, That Is A Question.

It’s entirely up to you.  You can agree to binding arbitration or not.  It might be a personal contract for medical services or for the purchase or sale of a house.  It might be a business transaction where you are the executive with signing authority for your company.  Do you agree to binding arbitration?  Do you give up the right to litigate any dispute that may arise later regarding the contract?  How do you decide?  Are there advantages to binding arbitration?  Are there disadvantages to litigating, to using the court system to resolve disputes?  Well, yes, there are advantages and disadvantages in both systems.  

Some businesses routinely require the parties with whom they contract to agree to binding arbitration.  They figure that they will be advantaged by arbitration if there is a fight.   They don’t want a jury trial.  They don’t want a judge who might be overturned by an appeal.  They want the streamlined system of arbitration with an all powerful arbitrator to decide the case as judge and jury with no oversight by an appellate court.  They are willing to pay for the arbitrator’s time.  Courts charge filing fees and impose some other charges but you do not have to pay for the time of the judge as you do for an arbitrator.  

Particularly when representing claimants, I prefer litigation.  I believe that my client has more power, more advantage with the right to a jury trial and when the judge is subject to the oversight of appellate courts.   Arbitrators have far more power than judges.   As a practical matter, arbitrators’ decisions cannot be reversed on appeal for errors in managing the case.  Arbitrators’ decisions can only be overturned for the most outrageous behavior such as for taking bribes for throwing a case.   This immunity from oversight, combined with the fact that an arbitrator makes the jury’s decisions as well as the judge’s, just concentrates too much power in one person for my liking.

In making the decision, perhaps one consideration should be whether you believe you or your company is more likely to be a claimant or a defendant should a dispute take place.  It may be that the reason some enterprises require their contracting partners to sign arbitration agreements is because they believe they will have the advantage should a claim be made against them.  Just for starters, a claimant might be inhibited from going forward by the burden of paying for the arbitrator’s time.  The judge is free, sort of.  Perhaps the enterprise requiring the arbitration agreement thinks that it is also an advantage, in defending claims, that the arbitrator’s power is not moderated by a jury or by appellate review of the arbitrator’s decisions.

Sometimes, you will be presented with a binding arbitration agreement and the choice is to sign the agreement or forgo the contract altogether – take it or leave it.  In such cases, if the service is important and valuable to you, you will likely sign the agreement without much analysis of the advantages and disadvantages between arbitration and litigation.  In other situations, where closing the agreement is not absolutely conditional on acquiescing to arbitration, perhaps you should consider whether you or your company would more likely be a claimant or a defendant, should a dispute occur.  Claimants might be better off with juries and judges and appellate review.  It is sometimes just the possibility of a jury trial and the possibility of appellate review that gives a plaintiff sufficient advantage to settle a dispute on very acceptable terms.  On the other hand, if you believe that you or your company would more likely be defending a claim, perhaps the advantage is in agreeing to binding arbitration.

Consider your decisions.  Get good legal advice.  Proceed with confidence.

Content prepared by Edmond McGill. © Edmond McGill, 2017

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Litigate.Arbitrate.Mediate

When you signed that real estate purchase contract last month did you initial the box that will compel you to arbitrate rather than litigate any dispute that may arise in the future about the contract or about the million dollar house you just bought?  Did you check the other box agreeing to mediate before initiating any legal action?  Did you do the right thing, the smart thing?

What’s the difference between litigation and arbitration?  How does arbitration differ from mediation?   Litigation, arbitration, mediation – what do these words mean?

Litigation is what happens when a lawsuit is filed in court.  The procedures and processes that the lawyers and judges use right through a jury trial, verdict and judgment are all part of the litigation.  A claim that is being litigated is a claim that is going through the court system.

Arbitration is very similar to litigation but arbitration is conducted outside of the court system.  The disputing parties hire an arbitrator who will be both judge and jury.  An arbitration hearing is like a trial and the arbitrator will make a decision called an award, which will have the same effect as a verdict and judgment rendered in court.  Arbitrations usually go faster than litigations because the procedures are simplified.  The parties pay the arbitrator’s fees in addition to their own attorney’s fees.

While arbitration and litigation are similar in that the arbitrator or the judge and jury make a decision, a mediator makes no decision about the matters in dispute.  Mediation does not include a trial of the case.  Mediation is a facilitated negotiation and the mediator is the facilitator.  In a successful mediation the parties, with the help of the mediator, negotiate and may voluntarily agree to settle their dispute. Mediators, like arbitrators, are hired and paid by the parties.  A dispute can be mediated before or during arbitration or litigation.

A decision to initiate litigation is a serious matter.  So is the decision to waive your right to litigate in court and to agree to privately arbitrate your case instead.   Mediation might result in a resolution of your case, peace and possibly even satisfaction.  Make a thoughtful decision about when and whether to mediate a dispute.  Unsuccessful mediations, however, can make litigation or arbitration harder and more expensive and can reduce the chances of ultimately settling your dispute on acceptable terms.

I will have a few tips for our readers in Part II of this series on how to decide whether to agree to arbitrate your dispute rather than insisting on your right to litigate in court.  Part III will feature the mediation process.  Mediation has become so popular and common that it is assumed that disputes will end up before a mediator.  Stay tuned.

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

The Insanity Defense

John Hinckley Jr. shot President Ronald Reagan in the chest in 1981.  The shot was almost fatal.  Hinckley also shot presidential press secretary James Brady in the head, permanently disabling Brady.  Police officer Thomas Delahanty and Secret Service agent Timothy McCarthy were wounded as well.  When Brady died in 2014, the medical examiner pronounced the death to be a homicide – a result of the head wound inflicted by Hinckley thirty three years before.   Hinckley shot the president and James Brady in order to impress actress Jodie Foster.  He was stalking Foster and not having much success in arrange a real encounter.  He thought that assassinating the president would do the trick.  Obviously, John Hinckley was mentally ill.

Now, three and a half decades later, doctors have found that John Hinckley is sufficiently restored to mental health that he can be released back into society.  He is no longer a danger, the psychiatrists say.  He won’t try to assassinate any more presidents and he will not hurt anyone else.  Hinckley may have been found not guilty as a result of insanity but that insanity was not permanent.  It was insanity of the passing type, temporary insanity.  

Hinckley is not the first to “get away with murder” because of a mental disorder.   In San Francisco in 1978, former police office and former city supervisor Dan White coldly shot and killed Mayor George Moscone and Supervisor Harvey Milk.  White’s famous diminished mental capacity defense resulted in a conviction for voluntary manslaughter rather than murder and White was released after just five years in prison.   Five years for two cold blooded assassinations!

John Hinckley’s defense of temporary insanity has its roots in politics too.  Congressman Dan Sickles was an aspirant to the presidency when he shot and killed Philip Barton Key, the district attorney of Washington DC and the son of Francis Scott Key, the author of our national anthem.  Key had been taking liberties with Sickles’ beautiful young wife Teresa and that just drove Sickles out of his mind.   Sickles was defended at his trial by Edwin Stanton, also an aspirant for the presidency and later Abraham Lincoln’s Secretary of War.  It was the trial of the century and Dan Sickles walked out a free man.   He was insane when he shot down young Mr. Key.  He was out of his mind with jealously and rage.  It seemed that shooting Mr. Key in the head had a salutary effect on Sickles’ mental health because the jury found that the insanity that excused Sickles from shooting and killing an unarmed man immediately disappeared once the killing was done.  Sickles felt a lot better when his wife’s lover was dead at his feet.  Dan Sickles went on to be a major general in the Union Army and lost a leg at Gettysburg.   

John Hinckley’s insanity, like that of Dan Sickles, has been determined to be impermanent.  Hinckley has been restored to his freedom because psychiatrists found that the insanity that drove him to shoot the president and James Brady and two others was not permanent.  It was temporary and Hinckley is better now.  You may be forgiven for wondering if some others besides Hinckley might be a little bit out of their minds.

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Balcony Collapse

We take a lot for granted when we step out onto a deck or balcony two or three or more stories above the hard ground below.  We assume that the architects and engineers and building contractors did their jobs competently.  What could go wrong?

Just a year ago, in June 2015, thirteen young students learned exactly what could go wrong when the balcony of a Berkeley California apartment collapsed dropping the students fifty feet to the ground below, killing six and seriously injuring seven.

So often we have to sadly remind clients of the obvious limitations of the law in providing relief and remedies for the terrible and tragic injuries and damages that are inflicted on them and their loved ones as the result of the neglect or malice of others.  Obviously, the six dead students cannot be returned to life.  The law cannot cure any permanent injures suffered by the seven other students.  The law can regulate.  It can punish.  It can compensate.  It is not enough but that is all that the law can do.

Alameda California District Attorney Nancy O'Malley announced in March, after an almost year long investigation, that no criminal charges would be brought against anyone associated with the construction or maintenance of the collapsed balcony.  There will be no punishment, at least not in the criminal courts.

Of course civil cases for money damages have been filed against those thought to be responsible for the balcony’s collapse.  To the extent that these suits are successful and to the limits of all of the culprits’ insurance policies, compensation may be ordered for the families of the six dead students and the others who were injured.  The very idea of money compensation for the loss of a son or daughter is really quite absurd and the formulas and benchmarks that we lawyers use to value a lost life are contrivances.  It is the best that we can do.  Civil courts can’t put people in jail but, in addition to compensatory damages, they can award punitive damages.  Punitive damages don’t have the bite of criminal prosecutions but, if a jury finds that the lack of care in installing or maintaining the balcony was malicious, that is if it was done with reckless disregard for the safety of the unlucky thirteen students who were killed and injured when the balcony collapsed, the responsible companies and individuals might have to pay huge sums of money for punitive damages that will not be covered by their insurers.  

So there will be no punishment by the criminal justice system and there may be compensation damages and possibly punishment by way of punitive damages in the civil courts.  A third repercussion for any guilty companies or individuals holding California contracting licenses is revocation or suspension of those licenses. On that front, the California State Contractors Board, which licenses and regulates contractors in California, has initiated actions against five companies.   

Punitive damages, not covered by insurance, and suspended or revoked contracting licenses might be deathblows for the contracting companies that caused the deaths of six innocent young students.   The families of the killed and injured may receive millions of dollars in compensatory damages.  None of this will bring the students back.  The law does what it can.  It can do no more.

Stay tuned to The Legal Pulse for updates and call Ed McGill for a no charge consultation if you or someone you know has suffered as a result of the negligence or malice of another.

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Don't Taze Me Judge!

The courtroom can be exciting, better at times than anything you can see at the movies or on television.  Big things are being decided.  Nerves are taut.   Tensions are high.  Sometimes great fortunes are at stake.  Sometimes defendants are on trial for their liberty.  Sometimes the stakes are actually life or death.  I have been a lawyer in court for clients in all of these circumstances.  

So when you go into the courtroom take heed; this is serious business.  There is a judge sitting up there on the bench wearing a menacing black robe, clothed with great power.  That judge carries the authority of the state and the dignity of the office – the auctoritas and dignitas of the Romans.  Now, to tell the truth, judges being human beings, sometimes that authority is abused and sometimes the dignity is abased.  I once remember the report of the defrocking of a judge in California because, when attorneys began to argue their cases, he would spin his chair so that he faced the back wall and mumble incoherently to himself.  In the exciting instances when judges act so weirdly, of course, it’s better to be a witness to these abuses and indignities than to be the target of them.  That’s what self-representing defendant Delvon King learned the hard way not too long ago when he appeared before Maryland Judge Robert Nalley.

Delvon was arguing his own case.  Yes, you might say that he had a fool for a lawyer.   Even a fool didn’t deserve what happened to Delvon’s lawyer.  Certainly, Judge Nalley might have suffered Delvon’s arguments with a bit more judicial patience than he did.  But no, the judge did not like Delvon’s argument a bit.  I don’t think that he liked Delvon.  So, when Judge Nalley had heard enough and still Delvon, a passionate advocate for his own cause, continued to argue, well the limit of judicial patience was found and the hammer of auctoritas fell.  I’ve experienced and witnessed the limits of judicial patience before, many times.  Once, a good many years ago, my opponent was making his final argument to the jury when the judge, exasperated for some reason, interrupted this unfortunate lawyer who, no matter what the merit of his argument, did not deserve what came.  “Shut up; sit down; you’re through”, ordered the judge.  Oh!

Judge Nalley silenced Delvon differently, not with a crash of his gavel or with harsh unmeasured words, but with a better more powerful silencer, a 50,000 volt taser jolt.   “Do it”, the judge commanded the court’s bailiff, “use it”, the taser that is.  The bailiff did it and that did it.  Delvon finished his argument as his own lawyer with screams of excruciating pain - 50,000 volts of pain.

On March 31st Judge Nalley faced another judge in the Federal District Court in Maryland.  This time Nalley was the defendant and he was sentenced to probation for violating Delvon's civil rights by silencing him with a 50,000 volt electric shock.   Nalley has retired from the bench and the Maryland Supreme Court has barred him from returning to serve on temporary assignments, as retired judges often do.

Now most judges most times behave in a very civilized manner.  Usually judges are courteous to the lawyers and respectful to litigants, witnesses and jurors even or especially when the stakes are high and nerves are shattered and people are stressed and tired.  Judges like Judge Nalley are rare but the law of averages dictates that a few strange and abusive lawyers will make it to the bench.   

No matter what the dispute, whether it is a fortune at stake or issues of life and death, no matter the issues or the emotions, the angst and anger, Ed McGill will always champion your cause faithfully and energetically, without distraction, to achieve your goals, to win your case.

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Charles Manson Release

Just imagine, it’s only weeks until Charles Manson’s release?  Imagine, also, a ruling from the United States 9th Circuit Court of Appeal affirming the orders of the United States District Court that not only mandated Manson’s release but also awarded him a tidy sum of money to be paid by the taxpayers of the State of California.  The conditions of Manson’s prison confinement for more than four decades violated his human rights, the District Court found.  He suffered innumerable indignities and harms to his humanity.  Standards previously applied by American courts under the Eighth Amendment to the United States Constitution prohibiting Cruel and Unusual Punishment set too low a bar for the treatment of prisoners in the United States.  European courts have set new and higher standards for the humane and civilized treatment of those whose misfortune it is to be convicted of a crime.   Imagine that the 9th Circuit found that the civilized and humane European standards are derived from the natural rights of man and that these natural rights preexisted the Constitution and, where more protective than the rights guaranteed by the United States Constitution, they must be applied to protect prisoners in the United States.  Manson’s release and compensation naturally follow.

The liberation and compensation of Charles Manson cannot be a surprise if American courts are to follow the lead of Europe as has been encouraged even by powerful judges in the United States.  Isn’t it correct that, where European standards of criminal justice are, well, let’s say more civilized, more forgiving, less penal and more permissive than American standards, these standards provide a good guide for the “better angles of our nature” and we ought to apply them here in the United States too.  

Take Norway for example.  Other than Disneyland, Norway is reputed to be the happiest place on earth and Norwegians must be happier still because of how humanly and justly their courts have treated self-styled neo Nazi and mass murderer Anders Breivik.

Breivik killed 77 people, a lot more than Manson and, unlike Charlie; Breivik did it himself in a bombing and shooting spree in which he especially targeted teenagers.  Even so, that’s no reason to treat him badly and Breivik has suffered inhumane incarceration in his three room private suite – one room for sleeping, one for exercising and one for studying.  In addition, Breivik has the use of a computer.  He has video games, television and access to a phone to call his girlfriend.  Even so, Breivik complained that the food was not up to his standards, his coffee was cold and that his human rights were violated because he was alone and lonely in his rooms.  The Norwegian court agreed that Breivik’s human rights were violated and awarded his attorneys more than $50,000 for pointing it out.  

Breivik will not have to suffer indignities all that long, really, in comparison to prison terms in the United States.  Norway is committed to the rehabilitation of criminal offenders and, if Norway cannot rehabilitate Anders Breivik before he finishes his 21-year maximum sentence, well, whose fault is that?  Out he will go.

In America’s crueler less civilized justice system, Charles Manson has already served 45 years, more than twice the maximum time that Brevik will serve for killing 77 people.  Americans might be okay with leaving Charlie Manson in a small cell, humiliating him with handcuffs and other restraints and serving him cold prison coffee but Manson’s conditions of confinement would be absolutely unacceptable to the Norwegian court that handled Anders Breivik’s case.  So we can only imagine, with delight or with horror the day when our courts will achieve the same level of civilization and humanity as the do the courts of Norway.

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Goliath vs Goliath

It’s Apple Inc. versus the Federal Bureau of Investigation.   The fight is in the federal courts, the Congress of the United States and the great court of public opinion.  The contest rises on the heels of the disclosures about the National Security Agency’s domestic surveillance of ordinary citizens and with ever growing fears by some that the government is following a script written by George Orwell.

The FBI wants Apple to create a digital key to bypass the security in an iPhone assigned by the county of San Bernardino to its employee Syed Rizwan Farook, an Islamic extremist who killed 14 innocent Americans on December 2, 2015 and wounded 22 more.  The FBI reasonably believes that there may be information on the iPhone related to other terrorists who could pose a threat to citizens of the United States.  It is the FBI’s mission to protect those innocent citizens.  On the other hand, Apple asserts that once the security of the iPhone is breached no one’s iPhone information will ever again be secure.  Security versus privacy must remind us of Benjamin Franklin’s famous admonition that “those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Powerful allies are lining up on each side of the big fight.  Microsoft’s Bill Gates believes that Apple should cooperate completely with the FBI while, Microsoft, the company he founded, is on Apple’s side.  AT&T also supports Apple, as does Facebook’s Mark Zuckerberg.  

Perhaps, surprisingly, retired four-star general Michael Hayden, who, as director of the National Security Agency, installed and still defends the controversial surveillance program to collect telephone metadata on millions of Americans, opposes the FBI’s effort to force Apple to install a digital back door into the iPhone.  

Blinded, as we are by the larger dispute, let’s not rush past two important points.  First, isn’t it amazing that Apple’s security is so effective that the FBI with all of its assets and knowhow cannot break into Farook’s iPhone?  It is true that in recent days the FBI has disclosed that someone from outside of this famed law enforcement agency may be able to get past the iPhone's security but the FBI has not been able to do so itself.  Second, the County of San Bernardino California owns the iPhone.  The phone did not belong to Farook.  Farook was a county employee and he was provided with the iPhone by the government to perform his duties as a county employee.  The county bought the phone and the county paid the monthly bill.  Even so, the County of San Bernardino did not make provision to control the security locks on its iPhone.  

Whatever we think about the battle between Apple and the FBI, between security and privacy, let us all take heart about one thing.  These issues, in the Congress, in California’s San Bernardino County and in the federal courts play out in public, before our eyes.  We do not, not yet at least, live in a country where these important issues are decided in secrete.  We will know the result of the contest.  We can hope to know if the FBI succeeds in gaining access to our phones and to our computers and to all of the information that describes and defines our lives.  We may or may not like the result but we will know.  We will know if Apple succeeds in depriving the FBI of the opportunity to determine if there is information vital to national security on the iPhone loaned to Farook by San Bernardino County.  

Is Big Brother watching?  You betcha!  He likes to look at everything, everywhere, always.   It is yet to be seen if we can keep him narrowly focused.  Stay tuned.  

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Scalia and Ginsburg

You would have a hard time finding two judges further apart in their philosophies and beliefs about how the United States Supreme Court is to construe the Constitution than were Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg.  They were truly polar opposites - polar opposites and, yet, “best buddies”.

Their disagreements, rooted in the most profound philosophical differences about how government should work, in the meaning of the guarantee of personal liberty and in how judges should construe the Constitution, were not personal.  In disagreeing, they did not reduce themselves to the sort of personal accusation and name calling that we, unfortunately, sometimes see in political contests.  Mud slinging is not new in American politics.  Since the very founding of the Republic, political adversaries have engaged in vile personal attacks on their opponents directly and through proxies.  

Scalia and Ginsburg each consciously made the work of the other better by thoughtful, intelligent and respectful disagreement.  They deeply disagreed but they liked and respected each other.  They spared and exchanged contrary ideas on the most divisive issues in our country and yet, still, they were “best buddies”.  Their families vacationed together.  They spent holidays together and Antonin and Ruth very much enjoyed attending opera together.  This is the very best of what lawyers and judges do and, in the long history of American jurisprudence, no others ever did it better that Antonin Scalia and Ruth Bader Ginsburg.  

Lawyers and judges are in the business of disagreement.  We lawyers come to conclusions and to the resolution of highly disputed issues by engaging in a combat of the intellect.  We test our ideas against each other and sometimes we do this in front of juries who will decide and sometimes before judges who will decide.  In appellate courts, cases are heard by groups of judges who decide by majorities of the number of judges hearing the case.  Argument is the tool.  Confrontation cannot be avoided.  There are winners and there are losers.  

In remembering Justice Antonin Scalia, we need not agree or disagree with his numerous written opinions or his philosophy of government.  Rather, let us remember the example that he and his still serving “best buddy” Ruth Bader Ginsburg gave us about just how to disagree about ideas.  With the passage of time, the fire goes out of even the ugliest of disputes.  Forever lasting, however, as the very best example for lawyers and judges and even for politicians and citizens in general, is the real human warmth and sincere respect and friendship that Justice Scalia and Justice Ginsburg shared as they disagreed so fundamentally about ideas.

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Oh no, it's OJ again.

Just when we were beginning to believe that we could finally forget about the Juice, Hollywood drags him out of his Las Vegas jail cell and parades before us what many believe was the travesty of his murder trial for the barbaric slaughter of the mother of his children and young Ron Goldman.   Here is the lesson of that trial and the best lesson that we should take from the TV dramatization called The People versus OJ Simpson.

Only in the institution of the jury trial do Americans really experience democracy because only in the jury trial do citizens make decisions for the state directly – government by the People.  Except for the jury trial, all of our so-called democratic governing institutions are representative bodies.  Citizens vote for representatives.  Representatives make decisions.  Citizens abide by the decisions of their representatives.  In a jury trial, citizens make decisions directly without intermediary representatives.  

I have stood before many juries over the years and delivered a closing argument reminding those 12 chosen citizens of the power and trust that our constitutional system places in them.  “No power on earth can tell you what to do: not the judge, not the lawyers, not the Congress or even the Supreme Court of the United States.  In this trial, you are the state.”  We, the People, are willing to give over to representatives the power to make laws through legislative representatives.  We are willing to let representatives in the executive departments of our state and national governments, governors and the president, execute those laws in our names as our representatives.  Whether elected or appointed, judges, in trial courts and appellate courts, all the way up to the United States Supreme Court, represent us when they administer and interpret the laws enacted by our other representatives.  In every function and aspect of government, except the jury trial, representatives act for us, and democracy is indirect and remote.  In a jury trial, the People decide, not through representatives but directly as an exercise of pure democracy.

Although we Americans have a great affection for democracy, democracy is far from perfect.  Democracy is fickle and it is flawed.  In reserving to ourselves decisions in civil and especially in criminal trials, we have decided to accept the flaws and mistakes of direct democracy.  We have decided that it is better to accept the risk of mistakes made by citizens who decide who is liable and for how much and who is guilty and who is not.  Tragically, it does happen that the innocent are convicted after prosecution by myopic, mistaken or over zealous prosecutors who make convincing arguments to citizen juries.  Sometimes severely injured people are unjustly not awarded money damages by a jury.  Sometimes the guilty go free.  

The injustices that result from the direct democracy in jury trials are sacrifices to our certainty that government by the People, pure and direct, is the best government.  We hold that more and worse mistakes would be made if representatives, government agents, were to make the decisions that juries make today and history proves this to be true.

For those who believe that OJ Simpson was guilty of stabbing Nicole and Ron to death, OJ’s acquittal by a Los Angeles jury is a travesty.  It is a big sacrifice to democracy but do any of us believe that there would be fewer mistakes and fewer travesties if civil servants were to make the decisions that juries make today?  Just imagine that world, the world in which government paid civil servants decide who is guilty and who is liable.  OJ’s acquittal is part of the price to be paid so that citizens rather than civil servants make the most intimate decisions of government.  There is no perfect justice in this world but we hold that citizen juries, with all of their imperfections, in every case every time will bring us closer to perfection than government civil servants ever could.

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Justice, Vengeance and The Cause

Clients come to lawyers seeking justice, seeking the resolution of problems and seeking guidance and help to take advantage of opportunities.  Sometimes clients want vengeance, or vindication or the advancement of a social or political cause at the expense of everything else.   A wise client will choose a lawyer who does not offer what the law cannot supply and a good lawyer will discourage a client from attempting to use the legal system to achieve impossible or improper goals.   Whether engaged in litigations or transactions, legal processes can be difficult enough without the added frustration of chasing unattainable goals.  The law is an expensive, unsatisfying and even dangerous venue for quixotic adventuring.   

Vengeance

Some clients want to use legal procedures to inflict suffering and pain on their adversaries.  These clients would be better off to avoid lawyers who are happy to bill them for misusing the legal system in attempts to harass others, even if the others seem to deserve it.   These clients should hire the lawyer who refuses to do this.  The client should hire a lawyer who is willing to temporarily displease by emphatically saying that vengeance is not on the menu.  The client is very well served by the lawyer who is willing to say, “this is a law office - the vengeance store is down the street”.  

The Cause

Sometimes it’s a cause that brings the client to the lawyer’s office.  The client confuses the case with the cause.  A client may be arrested or sued for protesting at the site of some unflavored activity.  It used to be sit-ins at a university chancellor’s office.  It might be any cause at all and any activity in support of the cause.    Organizations that support the client’s cause might encourage the client to use her criminal case as a platform to argue for the cause, to sacrifice herself - even to go to jail to make a point.  The client may be sued civilly by adversaries seeking money damages and injunctions.  Once again, the client would be far better off seeking out a lawyer who resists a strategy of self-immolation.  Better than jail or a money judgment against the client might be a news conference on the courthouse steps after the acquittal in a criminal case or after a verdict in favor of the client in a civil case.

Justice

It is absolutely correct for clients to seek justice from the legal system.   A client and a lawyer who have this goal are a good fit.  But justice does not just happen.  A client who expects justice to rise up from the earth and embrace her is mistaken.  There is much injustice in the world and the legal system is quite capable of inflicting unjust results.  Clients should be wary of lawyers who encourage the client to expect that justice will just flow to the client in the natural course of things with little effort, expense or commitment.  A thoughtful client and a sage lawyer know justice that is not guaranteed.  What is guaranteed is the right to fight for justice.  

The right client for the lawyer is the client who understands that she will have to fight for justice.  She will have to be committed to the fight.  She will have to use her financial resources and her time, her patience and her persistence.  The right lawyer for the client is the lawyer who will fight to achieve a just result for his client.  This lawyer actually knows how to fight and is willing to do so.  Justice may not be guaranteed but what is guaranteed is that the client who doesn’t fight for it – doesn’t engage the lawyer who will fight for justice - is not very likely to get justice.  

Clients and lawyers have the responsibility to be deliberate and wise in choosing each other.  Each should make the choice for the right reasons.

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Compatibility

Clients and lawyers should pay attention in forming a professional relationship and chose each other with care.  

It is instructive for a client to consider what criteria a lawyer should use in deciding whether to take on a new client and it is instructive for a lawyer to consider what criteria a client should use in selecting a lawyer.

Forming the attorney client relationship is a very important transaction and it ought to be done with care by both the client and the lawyer.  That the client is not taking care in this most important transaction to be sure that the lawyer is the right lawyer for the client’s case should give great caution to the lawyer.  That the lawyer is not taking care in selecting cases or clients should give great caution to the client.

"Of course, compatibility is an elusive concept."

Different lawyers have different methods and criteria for deciding whether to take on a new case.  For some, and this is unfortunate for both the client and the lawyer, the only criteria employed by the lawyer is whether the client is willing and able to pay the fee.  Certainly, the willingness and ability to pay the fee is a necessary precondition for the attorney client relationship; however, it must not be the only criteria.  When a lawyer is so eager to sign up a new client that nothing but the fee matters, the relationship will probably go wrong and it is likely to go wrong sooner rather than later.   

The lawyer, as well as the client, must consider issues of the lawyer’s competence and experience for the task for which services are sought as well as the necessary time commitment, the resources of the client and the lawyer to complete the task and, importantly, the compatibility of the lawyer and the client to work together on the client’s case.

Of course, compatibility is an elusive concept.  Volumes have been written by psychologists and popular culture writers on what makes or does not make people compatible.  Like kinds can be compatible and it is cliché that opposites attract.  In the attorney client relationship, there are some guidelines that may ground a client’s and a lawyer’s decision on whether they are compatible – whether the lawyer and the client are a good fit.  

"Lawyers should be attentive to a client's purpose and goals in seeking professional help and clients should be careful about lawyers who are too quick to promise that the client's goals will be met whatever they may be."

A desperate client and a hungry lawyer might have an irresistible initial attraction that appears to be but really is not compatibility.  A client who has already gone through two or three lawyers will probably be very glad to encounter the reassuring next lawyer who “understands” why the client was disappointed in the former lawyers.  Savvy lawyers are cautious about taking a case in which there have been a number of former lawyers, where the client comes to the lawyer already dissatisfied.  Clients should not engage lawyers who are so hungry for business that they do not consider factors other than the fee in choosing their cases.   Hungry lawyers, however, might perform very well because they are highly motivated to do well and to have satisfied clients who spread the word about the lawyer’s fine services.  It is true, also, that sometimes clients have been improperly served by former lawyers.  While lawyers should be careful about engaging a client who is reasonably dissatisfied with the services of a former lawyer because the tendency to generalize the negative experience could be the prism through which the client views the new lawyer’s services.  Even so, a client who has really had unsatisfactory services deserves to have a good, competent and faithful lawyer and such a lawyer can do good service for the client and for the profession of law by taking the client’s case.

Lawyers should be attentive to a client’s purpose and goals in seeking professional help and clients should be careful about lawyers who are too quick to promise that the client’s goals will be met whatever they may be.   Consider the lawyer who tells a prospective client that she will recover hundreds of thousands or even millions of dollars for the client’s personal injury claim before the lawyer knows all of the facts.  That lawyer really wants to sign up the client.  The lawyer is pretty sure that there will be some recovery in the case from which to take a percentage, never mind that the recovery may be far below what is promised or suggested to induce the client to sign the lawyer’s contract.  The lawyer knows that the client can be gently disappointed later.  If the lawyer finds out later that the case has no merit or if it is too tough a case for the lawyer, well, there is a clause in the contract stating that the lawyer can withdraw from the case.

Another lawyer is more cautious in promising results.  Sure, after listening to the client, the case looks promising but this lawyer wants to know a lot more before being specific with the client about expected results.  Maybe the client will recover hundreds of thousands or even millions of dollars.  It will be soon enough to have that evaluation after the facts and evidence are better known.  Similarly, in a criminal case, one lawyer, eager to be hired, without knowing the facts or evidence, immediately and without reservation supports the client’s protestations that he did nothing wrong and agrees that charges should be immediately dismissed.  Another lawyer, one who is really better equipped by experience, training and personality to do the hard work of fighting the client’s case in court, tells the client that he will have a better idea about the case after he reviews all of the evidence and researches the law.   

Next time on the subject of clients selecting lawyers and lawyers selecting clients, we will look at how a client’s motives and a lawyer’s methods should affect a client’s choice of a lawyer and a lawyer’s choice of a client.  

Next to come Justice, Vengeance and the Sacred Cause … .

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Bill Cosby headed to jail?

2015 was a banner year for celebrity justice.  You will have to be the judge of just what sort of banner that has been.  TMZ has, perhaps too excitedly at times, reported on stories from copyright litigation over the song ‘Blurred Lines’ to Tom Brady’s involvement in the deflated footballs scandal. Perhaps the most heinous of all, however, was the revelation that Bill Cosby might not be that funny, trustworthy family man serving us brightly colored gelatin treats through the TV set, but rather, a longtime sexual predator.

Once the first allegations were made against Cosby during a comedy routine that went viral, additional claims came swiftly following.  Cosby has now been accused by over 50 women of rape, drug facilitated sexual assault, sexual battery, child sexual abuse and sexual misconduct. It’s a stark contrast to “The Cosby Show’s” all American Dad routine - that’s for sure.

With alleged incidents occurring from 1965 to 2008, spanning 10 U.S. states and even into Canada, Cosby still argues for his innocence, denying allegations in repeated interviews and broadcasts. Guilty or not, Cosby is fortunate that the law is on his side in certain regards as most of the alleged crimes fall outside the statutes of limitation for criminal proceedings. Put simply, too much time has passed. In the wake of this, several civil lawsuits have been filed.  Most closely watched is an felony assault charge brought against Cosby in Pennsylvania..

This past summer, a Pennsylvania Federal District Court unsealed deposition testimony that revealed that Cosby admitted to acquiring prescriptions for Quaaludes back in the 1970’s. Still, Cosby denies these felony charges which originate from early accusations made by Andrea Constand, and his legal team has taken it a step further in a motion to dismiss the case. Prosecutors seem anything but disheartened, arguing that this is just another attempt at celebrity special treatment.

Cosby has powerful lawyers working for him and an expensive public relations team blowing a lot of smoke.  Even so, it may not be enough to save him when his victims have their day in court.  He and his accusers must trust the court.  They have no choice.  Wait and see what happens to America’s favorite dad.

Now it does happen that innocent people are arrested and charged with crimes.  And it happens that people who may have done something wrong are over charged and face penalties far beyond what is just.  In any circumstances where you or someone you know is under suspicion, being investigated, or has been charged with a crime, it is very important to consult with a competent, experienced and faithful attorney right away.  

Content prepared by Alicia Parry. © Alicia Parry, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

So, you need a lawyer...

You need a lawyer. Your friend needs a lawyer.  Your mother needs a lawyer.   Your niece has been arrested for drug possession.   Your new company is very successful and rapidly expanding.   You need help negotiating commercial leases for expanding office locations, drafting employment agreements and other contracts.  You need strategic legal advice.  Your brother’s business just launched its most promising product and he discovers that his business partner is planning to take a high paid position with the company’s chief competitor.  Your brother’s partner knows all of the company’s secrets.  Your neighbor was seriously injured in a car accident.  The other driver was on his company’s business, driving a company vehicle and he was intoxicated after attending a company party.  The geotechnical engineer you hired discovers that the developers who built the new houses uphill, behind yours, changed the courses of storm water on the surface and under the earth redirecting it towards your property. Your house is moving.  There are cracks in the walls.  The doors stick. 

"There must be the perfect lawyer for your mother, for your neighbor, your niece and your brother's company."

There are thousands, tens of thousands, hundreds of thousands - actually considerably more than a million lawyers in the United Stares.  Surely there is the right lawyer for you, for your case.  There must be the perfect lawyer for your mother, for your neighbor, your niece and your brother’s company.  If you don’t already know this lawyer just how do you find the right lawyer?

Lawyers confront this problem too.  When my services are sought for work in an area in which I have chosen not to practice, I am invariable asked to recommend another lawyer.  Then I have the same problem as anyone else looking for a lawyer.  It’s not so easy but, in the search to find someone whom I am confident to recommend, I use the same methods that others should use in finding a good lawyer.  First, do I have first hand knowledge about a lawyer I might recommend?  Many times in my cases, I have had to engage the services of other lawyers in order to properly serve my clients.  I have hired lawyers with specialties in international tax law, workers compensation law, family law and more.   I can recommend, with confidence, good lawyers whose work I know from first hand experience.  

If I don’t know a lawyer from first hand experience, I might know someone by reputation.  While not as good as first hand experience, being held in high esteem by those who should know, perhaps from their own first hand experience, is a pretty good predictor of performance.

If the quest to find a good lawyer is a new experience for you or if you are experienced and you or your friends or family members need to find lawyers to help with new and different problems or opportunities, then we hope that the articles to follow will help to inform you so that you may more confidently make a selection.  No one but the client should or can properly select the lawyer and, as with every other choice or selection in life, the more information, the better.

"One thing the lawyers and clients have very much in common is the most basic mistake in choice and selection."

So, in the next two articles I will discuss not only some good hints on how to select the proper lawyer for the proper case but also, and this will be very important in selecting the lawyer, a few points on how lawyers ought to select their cases and their clients.  One thing the lawyers and clients have very much in common is the most basic mistake in choice and selection.  For the lawyer, that is taking every case that comes by with a paying client and for the client that is choosing, with relief but not much thought or consideration, the first lawyer who is willing to take the case.

Stay tuned. More to come …

Content prepared by Edmond McGill. © Edmond McGill, 2016

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Man hit by pine cone sues San Francisco Maritime Park for US$5 million

Picture the scene. It’s a beautiful autumn day and you decide to take a walk through your local park.  The sun is shining, but there is a cool breeze as fall marks the transition from summer to winter. You sit underneath a tree to relax when suddenly, without warning, your tranquility is interrupted as a pine cone strikes you on the head.

Has the incident ruined your day?  No, but it probably startled you. Would the unwelcome pine cone cause you to suffer ongoing stress or anxiety? Of course not, it’s only a pine cone.  Should you file a lawsuit against those responsible for the park?  A lawsuit? That would be ridiculous, right?

Well, what if I told you that the pine cone weighed 16 pounds and was covered in spikes.  To put this into perspective, the average bowling ball weighs 15 pounds. Imagine a bowling ball falling from 20 foot and landing on your head. Yeah, that's going to be a problem!

"The pine cone weighed 16 pounds and was covered in spikes."

So how do you feel about those questions now? No doubt you would like to revise some of your answers and wish to hold someone responsible. The incident would almost certainly affect a lot more than your day.  It is highly likely it would have a huge impact on your ongoing quality of life and could pose a risk of death.

Sadly, this scenario is not a hypothetical. These are the facts that caused Sean Mace, a 55 year old military veteran, to sustain a serious brain injury.  Mace was visiting the San Francisco Maritime National Historic Park in October last year to find a spot to watch the Blue Angels air show.  He found what he thought was a peaceful place to rest under a coniferous 'araucaria bidwillii' tree, more commonly known as a ‘bunya pine’. Unfortunately for Mace, one of the pine's cones broke loose and landed on his head, crushing his skull and causing internal bleeding. 

Mace was rushed to San Francisco General Hospital, where he underwent emergency surgery to relieve the pressure on his brain. He required another surgery five days later to relieve further pressure that had built up inside his skull.  “This guy has an irreversible brain injury and he’s only in his mid-50s,” said Mace’s attorney. “He’s had two surgeries already and he is going to need a third.”

The law of negligence

These types of incidents are governed by an area of tort law known as 'negligence', which has previously been explored by the McGill Law Office in our earlier blog post on Auto Accidents. Negligence occurs when a person fails to exercise a level of care that a reasonable person would do in the same circumstances.  Individuals, companies, local authorities, states and even the federal government can all be held liable for a negligent act.

Every person, organisation and public authority you interact with owes you a duty of care, just as you owe them a duty of care.  From the person walking passed you down the street, to the hospital that provides you with medical treatment, to the cab driver who takes you home.

"Every person, organisation and public authority you interact with owes you a duty of care, just as you owe them a duty of care."

If the person walking down the street is not looking where she or he is going and knocks you to the ground, injuring your arm, this is negligence for failure to exercise the level of care one would expect from the reasonable pedestrian and you have a right to sue them.  If the doctor at the hospital you attend fails to identify that your x-rays clearly shows that you have fractured your arm, which causes you extended suffering, this is negligence for failure to exercise the level of care one would expect from a reasonable doctor and you have a right to sue.  If the cab driver who is taking you home from the hospital hits the back of a vehicle when puling up outside your house, the cab company is negligent as the driver failed to exercise the level of care one would expect from a reasonable cab driver and you have a right to sue. 

So is the National Park Service liable?

Let's consider Sean Mace's claim.  The National Park Service is responsible for the San Francisco Maritime National Historic Park. A key part of the test to establish negligence is what would 'a reasonable park service' have done to protect the public given the circumstances?

The answer to that question will largely depend on whether a jury finds that the park service knew or should have known that the bunya pine cones grows to a  weight of 16 pounds and has a tendency to fall from the trees.  If the answer is yes, then clearly the pine cones presented a foreseeable risk of injury to park users and the park should have taken reasonable measures to ensure the safety of all park users.

What is particularly damaging to the park is that court papers allege that park staff actually planted the bunya pine trees, which were from Eastern Australia and were not native to California.  If this is correct, it is reasonable to expect that the park should have researched any risks associated with the bunya pines at the time that they were planted. One can only assume that research was not carried out as the bunya pine is famous for its large, heavy prickly pine cones.  Even if proper checks were not carried out at the time the bunya pine was introduced, the court will consider whether the park's employees should have been aware of the fact that the tree's pine cones presented a foreseeable risk of injury. 

A further obstacle that National Park Service would need to overcome if it challenges liability is that various news reporting agencies interviewed local residents who claimed that they had witnessed the pine cones fall on numerous occasions and that it was obvious that they presented a risk to people walking through the park.  If accurate, this will certainly encourage a jury to conclude that the park should have been aware of the risks. Following the incident, the bunya pines were cornered off with a safety fence and warning signs were erected displaying the dangers posed by the giant pine cones.

What should we take from this incident?

This story highlights some valuable lessons.  From a social and safety perspective, always check to see what dangers you may be exposed to when you decide to rest, play or picnic underneath a tree. From a cultural perspective its yet another reminder that pretty much anything found in Australia can kill, even the trees.  From a legal perspective, it is a good example of the numerous duties of care that others owe you in everyday life. 

"... another reminder that pretty much anything found in Australia can kill, even their trees."

Sometimes accidents simply happen and no-one is to blame, but if you are ever personally injured, sustain damage to your property or suffer economic loss, always ask yourself whether an individual, a business, a state authority or the federal government owed you a duty to keep you or your property safe from harm.  If you are unsure, please do not hesitate to contact the McGill Law Office to explore whether you have a claim.

Content prepared by Richard Parry. © Richard Parry, 2015

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

The Holidays

The Holidays, year’s end and the new year, a season of joy and celebration, touching here and there, the law in ways small and large is also a time to realize that having a good lawyer is a very good thing.  So here is some seasonal advice from your lawyer to ensure a joyful holiday season and a great new year.  

• If you have a business, an LLC or a corporation, now is the time to plan your year-end and new-year’s necessities.  Do you need to elect directors, appoint officers or approve the actions of officers during 2015?  Ed McGill can prepare your resolutions, review your contracts and help you to plan for a very prosperous and successful 2016.
• Avoid the doldrums of the new-year brought on by overspending in the holiday season.  It can feel good to spend money but January can be a hard month when the bills come due.  We are pounded with messages to remove the restraints of prudence and economy and, in the spirit of the season, let us spend, let us spend, let us spend.   But grave legal consequences can come from taking off all of the reasonable restraints.  Money is the biggest bone of contention in marriages and overspending and debt sometimes drive couples to the divorce lawyers or into bankruptcy.   It’s a hard thing to have a call from a client seeking services for divorce or because the client is in danger of bankruptcy.
• Watch your credit cards.  A greater number of transactions means a greater number of opportunities for the theft of your credit card information.  You might want to consider using services such as Apple Pay and Pay Pal in order to create an additional layer of security for your credit card accounts.  Check your credit card statements right away.  If you see any unrecognized transactions, contest the charges with your credit card provider and report any fraud immediately.  
• Guard your shopping bags, purses and wallets when in crowded places.  Unfortunately, this time of year is boon to purse-snatchers and other thieves.  Recovery from the immediate effects of such thefts is unlikely unless you have insurance that covers the losses.  If your wallet or purse is stolen, you might well need legal help to deal with the complex consequences of identity theft.
• Imbibing in the spirit of the season and holiday partying are time-honored customs. A good practice for job security is to limit yourself at an office party or at parties given by business associates.  Whatever the circumstances, Ed McGill, while prepared to do so, would prefer not to have to provide legal services to defend a client’s drunk driving case.  Accidents and bodily injury can raise the stakes to felony charges and insurance companies may not provide coverage for certain of the claimed money damages when injuries are caused by drunk driving.   Practice moderation and designate a driver.  If you or anyone you know is injured by another as a result of drunk driving or in any other circumstances, let Ed McGill know.  If he takes the case, he will make guilty party or his insurer pay and he will do it without any charge to his client unless and until a recovery is made.

The sun will return soon - days longer and then warmer.  Opportunities - family, friends, business - in a new year, 2016, will be upon us.  If there is anything that Ed McGill can do to help to make the new year better and more successful for you, just call.  

Content prepared by Edmond McGill. © Edmond McGill, 2015

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

El Niño

How may times do you hear people remark on the extraordinary occurrence of weather, the temperature outside, ice, snow, wind and rain just being so different from the expected average.   If the average rainfall for January in San Francisco is 4.5 inches, shouldn’t San Franciscans expect 4.5 inches of rain this year?  Well, really it might be more reasonable to expect rainfall between 24 and 0 inches this year which is the range for January over the last 175 years – a period with extreme annual variability from which the average is drawn.  Averages are not reality.  Nature follows her own rules no matter how humans measure and cipher.

Modern meteorologists do have some predictive abilities, however, and this year 2015 – 2016, January rainfall might well be much higher than the average 4.5 inches.  That’s because, they say, El Niño is coming.   El Niño is a periodic weather pattern that brings raging storms, great winds, huge snow packs in the mountains that will fill water reserves to overflowing in the Spring and lots and lots of cold rain,  - much more rain than in any “average year”.

El Niño may break the terrible drought suffered by Californians these last few years but it will not break it with warm and gentle Mayday showers.   Gales and torrents, raging downpours with flooding waterways are the stuff of El Niño and, as happy as Californians may be with the end of the terrible drought, they are well advised to batten down their hatches and prepare for the hammer blows of a wet and windy winter.

Mudslides, flooding, storm damages and automobile accidents all come with the big storms of an El Niño winter.  The McGill Law Office stands ready to offer its services to you if your house or other property is injured or destroyed as a result of flooding or mudslides.  So often, these damages are the result of the negligence of other property owners in changes that they make to watercourses or because the responsible government improperly constructed or failed to maintain government water drainage systems.  Please see the article previously posted on this subject. 

You may have claims against other property owners, against the government or against your own insurance company for thousands or hundreds of thousands of dollars and more.   The McGill Law office stands ready to represent you if you need to make these claims and to file and prosecute lawsuits on your behalf if that is necessary to make sure that you are completely compensated for any losses.  In many cases, compensation to the McGill Law Office can be made on a contingency basis and that means that you will not have to pay any fees up front and none at all unless and until a recovery has been made for you.

Unfortunately, with big storms, come more automobile accidents with damaged cars and injured people.  Take a look at the McGill Law office articles on the subject of automobile accidents and, if you or anyone you know is injured in an automobile accident, call Ed McGill.  

If you property has been damaged or you or anyone whom you know has been injured in an automobile accident, call Ed McGill.  I will be glad to speak to you free of charge to see if your case is a good fit for us to work together.

Content prepared by Edmond McGill. © Edmond McGill, 2015

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

Jingle Bells

Jingle bells, jingle bells, jingle … “oh, wait that’s not the radio.  It’s the phone.  Who would be calling this time of night?  And on this of all nights – It’s the night before Christmas” “I don’t know George.  What time is it?”  “It’s 3:00 a.m.  Well, Dorothy, Merry Christmas.”  “Put it on the speaker George.  I want to know who is waking us up at 3:00 a.m. on Christmas morning.”

You are receiving a call from the county jail booking desk.  This is a collect call.  The caller is a person who has been arrested and booked into the jail.  You may accept the charges by pressing ‘one’ after the inmate identifies himself or herself.  The inmate calling is …”Georgina Crolla”. … If you do not wish to accept the charges for this call, hang up now or press ‘one’ now to accept the charges.

“Oh, no, George …”   “Mom, Dad …”

While the holidays can really be a wonderful time of year for families and friends, sharing good food, exchanging gifts and enjoying fellowship, ironically and tragically, it is also a time of year filled with social and legal problems.  People drink too much.  Sometimes they are arrested. Sometimes they cause accidents.  Some are the victims of accidents caused by drunk drivers.  Some are victims of the increased violence that occurs in holiday season.  Some are the victims of thefts, petty and large.   

We don’t know what charges Georgina is facing.  Perhaps she was at a Christmas Eve party and made the mistake of driving home after having a bit too much to drink.  Serious as this is, a misdemeanor drunk driving charge will have far less impact on Georgina’s life than a felony drunk driving if someone was hurt in an accident caused by Georgina’s impaired driving.  The McGill Law Office can help but Christmas dinner might still be stiff and uncomfortable for Georgina.

Georgina’s case is just one of the types of events that are seasonally increased during the holidays.  Stay tuned to read about other seasonal problems with which the McGill Law Office may be able to help you.

Enjoy the holidays. Be alert.  Stay safe and be happy.

Content prepared by Edmond McGill. © Edmond McGill, 2015

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

JUDGEMENT DAY

Perhaps someone caused you to lose money by using sharp practices in a business deal.  Perhaps a former friend borrowed money from you and then did not pay you back.  Or maybe your car was damaged in an accident.  Maybe you were injured in that accident and you could not work for months.  You had to have surgery and you have still not fully recovered.  So you sued and you won.  Yippee!  You won. You have the judgment of the court, The Judgment of The Court, THE JUDGMENT OF THE COURT.  Well, not so fast.  A judgment isn’t a check.  A judgment isn’t money.  You can’t deposit a judgment in the bank.  You can’t spend a judgment.

In Richard Parry’s blog posts to follow perhaps the most important thing that you will learn is that it is not enough to win a judgment in court against someone who owes you money.   You must execute the judgment.  You must convert the judgment into money.  

In times gone by you would have had some pretty powerful tools to make your debtor pay.  There used to be debtors’ prison.  Just prove that that dead beat did not pay a legitimate debt and have the sheriff throw him into jail until he or his friends or family pays up.   And then there was a time when that debtor would sell himself into bondage or slavery in order to pay the debt to you.  Marcus Monius Needius even became a gladiator in order to pay his debts.  Wow, just wave that judgment in the air, click your heals and say, “off to debtors’ prison for you” and see how fast you convert that court judgment into real money.

Even today your debtor may still be arrested and thrown into jail if he doesn’t show up in court or you might obtain a scary body attachment in the unhappy circumstances that the debtor avoids the processes that require the disclosure information about the debtor’s money and other assets.  But a debtor in jail is not a bank deposit either, so let me recommend that you read on and see what lawyer Richard Parry will tell you about how to transform your judgment into real money.

Content prepared by Edmond McGill. © Edmond McGill, 2015

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

HOW TO ENFORCE A COURT JUDGMENT – PART TWO

In Part One we reviewed the steps that a successful party, the judgment creditor, needs to take in order to enforce their judgment should the losing party, the judgment debtor, fail to pay a judgment.  We considered how to obtain further information about the debtor’s assets, how to receive money from the debtor's employer and how to obtain money from the debtor’s bank account.

In Part Two, we will look at the process for securing a lien over a debtor’s real property before turning our attention to how we can enforce a judgment against a business debtor.  Finally we will consider how to recover the costs a successful party is forced to incur when enforcing a judgment.

Securing a lien over the losing’s party’s property

By placing a lien over any real property owned by the debtor, the debtor will not be able to sell or refinance property until the judgment is paid in full.  You do not have to provide the address of the property to impose a lien, nor do you even need to know for certain that the debtor owns property.  A lien will be placed on any property that is in the name of the debtor. The best approach is to record a lien in the county or counties where the debtor resides or does business.  The judgment is valid for ten years and the lien will stay in place for the duration of the judgment.  If need be, the judgment can be renewed before the end of the ten years.

If the debtor owns property in Marin County we will need to take an issued Abstract of Judgment to the County Recorder’s Office.  The lien will be recorded for a fee of $25.  If the debtor owns property in another county, we will also need to deliver the issued Abstract of Judgment to the Recorder’s office in that county (a further small fee will be required).

Seize money of a business ("till tap")

If the judgment debtor is a business which has a cash register, we can get the Sheriff to go to the business and take money out of the register to pay the judgment and the Sheriff’s fee.  This method of collection, known as a "till tap", is favored as it is relatively quick and is not as expensive as putting a Sheriff’s "keeper" in a business, which is discussed below.

To tap the debtor's till we will need to provide the Sheriff’s Office with an issued Writ of Execution as well as Sheriff’s Instructions, including the name and address of the business and the best time of day to do the "till tap."  The Sheriff will then go to the business address, take what money is in the cash register and serve the debtor with a Notice of Levy. 

If there is not enough money in the register to pay the judgment on the day the Sheriff goes to the business address, you have the option of sending the Sheriff back on another day, although a fee will be due every time the Sheriff goes back.  The Sheriff’s fees are recoverable and can be added on to the judgment amount and other expenses.  However, there is no guarantee that a collection can be made and the Sheriff's fees will need to be paid by you regardless of the amount of money seized.

The judgment debtor may challenge the seizure of their personal property by filing a Claim of Exemption with the Sheriff.  We will then have to oppose the Claim of Exemption and a hearing date will be set for the court to consider the debtor’s objections.

Seize the money and personal property in the debtor’s business ("keeper")

If the judgment debtor is a business, we can get the Sheriff to place an individual called a "keeper" in the business for a certain period of time.  The keeper will collect money received by the business on the day or days you have paid for a keeper to be present at the business.

We can also ask the Sheriff to sell the inventory of the business. The Sheriff’s fees for a keeper can be expensive. The fees will be added to the amount that the Sheriff collects, but there is no guarantee of collection.

To appoint a keeper, we will need to provide the Sheriff’s Office with an issued Writ of Execution as well as Sheriff’s Instructions, including the name and address of the business and day that we want the keeper to be present at the business.  You will also have to pay the Sheriff’s fee.

Recovering the costs of enforcing your judgment

In the event that we have to use legal proceedings to collect the money awarded to you under a judgment, you will have to pay court fees, service fees and Sheriff’s fees.  You are entitled to add these costs to your original judgment amount provided you have not filed a Satisfaction of Judgment (see below).  You must seek the recovery of these costs within two years of the date they were incurred.  You can also claim interest at 10% annually from the date of the judgment. Lastly, you must acknowledge any payments that the judgment debtor has made on the judgment.

We will arrange for a Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest to be delivered to the judgment debtor.  The person who delivers the Memorandum must complete the proof of service document on the back of the form, which we will then file the form with the court.  The debtor will have 10 days to file a motion to dispute some or all of the costs.  If no motion is filed, the clerk will add the costs to the judgment. If the debtor files a motion, we will get a notice of the time of the hearing at which the court will decide if you should get paid for the costs you have claimed.

What to do after a Judgment is paid

After you have been paid in full, you must file an Acknowledgment of Satisfaction of Judgment. If you recorded an Abstract of Judgment (to secure a lien over the debtor’s property), when you complete the Acknowledgment form you will have to name every county where you recorded the Abstract of Judgment and sign the form in front of a notary public. You must then record the Acknowledgment in each county where the Abstract of Judgment was recorded. The Recorder will charge a fee.

Recovering money awarded to you by the court can seem as a disheartening and sometimes painful process, but with a good understanding of the options available to you, the steps required and the assistance of reliable legal counsel where needed, the recovery and enforcement framework can be used effectively and efficiently. If you require advice or representation from the McGIll Law Office, please do not hesitate to contact us on 415 508 5323 or email us on inquiry@mcgill-lawoffice.com 

Content prepared by Richard Parry. © Richard Parry, 2015

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.