Archive for July, 2014

Immunity for judge who had intimate relationship with complaining witness in felony matter

Thursday, July 24th, 2014

July 23, 2014

New decision from Sixth Circuit in case where judge had an intimate relationship with the complaining witness in a felony matter.

Judge Wade McCree, while serving as the presiding judge in a felony child – support case against Robert King, maintained a romantic and sexual relationship with the complaining witness against King. In part as a result of this conduct, the Michigan Supreme Court both removed Judge McCree from judicial office and prospectively suspended him without pay for six years if voters should reelect Judge McCree in November 2014. King Sued Judge McCree Under 42 U.S.C. § 1983, alleging that Judge McCree’s conduct surrounding his case violated his right to due process of law. The district court determined that Judge McCree is immune from suit under the doctrine of judicial immunity. Because any violation of King’s constitutional rights arose purely from Judge McCree’s judicial actions, we affirm.

From the concurrence:

Absolute judicial immunity remains “strong medicine.” Forrester v. White, 484 U.S. 219, 230 (1988) (internal quotation marks omitted). At times, its application will seem overinclusive — shielding from suits for damages those who clearly have abused their office and tarnished the reputation of the judiciary. This is the price we all must pay for “the benefit of the public, whose interest it is that judges should be at liberty to exercise their functions with independence and without fear of  consequences.” Pierson v. Ray, 386 U.S. 547, 554 (1967) (internal quotation marks omitted). I take solace knowing that the Michigan Supreme Court has already stepped in and rendered the best justice possible: removing Judge McCree from office. Accordingly, I join the majority in affirming the district court’s grant of judicial immunity and dismissal of King’s suit.

Jurors Have Right to Judge the Law

Thursday, July 24th, 2014

Jurors Have Right to Judge the Law

By Frank Parlato

July 22, 2014


It has long been assumed that juries judge the facts and the courts judge the law.

But Georgia v. Brailsford (1794) is the precedent that explains why that is a hasty assumption. It sets a precedent that the jury can also judge, and if it wishes, veto any law.

Take a moment to understand what may be the most important freedom principle you will ever learn.

It is a fact that the first Chief Justice of the Supreme Court, John Jay wrote to jurors, “It is presumed that juries are the best judges of the facts; it is, on the other hand, presumed that courts are the best judges of the law. But still both objects are within your power of decision…you have a right to take it upon yourselves to judge both, and to determine the law as well as the facts in controversy.”


Shadrach Minkins was an African-American fugitive slave who fled in 1850 and settled in Boston, Massachusetts. A year after that, Congress enacted the Fugitive Slave Law which allowed federal agents to capture these law breaking, escaped slaves and hand them over to their owners.

On February 15, 1851, U.S. marshals arrested Minkins, but members of the Anti-slavery Boston Vigilance Committee illegally freed him from the marshals by force and sent him to Montreal.

President Millard Fillmore received calls to help the marshals enforce the law by using federal troops. Fillmore called on the citizens of Boston to respect the law and ordered the prosecution of Minkins’ liberators, but the juries did not convict any of them.

They acquitted and hung juries.

None of the law breakers went to jail.

As Justice Jay wrote 58 years earlier, they did indeed judge the law.


Remember, it is always within your power as a juror to judge the law and this, my friends, is the freedom guarantee carefully woven into the fabric of our constitution.

This is why Thomas Jefferson said he would rather that the right to vote be taken away rather than the right of the people to sit on juries; that the government could take no one’s liberty away without the consent of the people.

He said, “Were I called upon to decide whether the people had best be omitted in the legislative (voting to elect representatives) or judiciary department (jurors), I would say it is better to leave them out of the legislative. The execution of laws is more important than the making of them.”

Jefferson regarded jury nullification as the most important check on government.

In 1789 he wrote: “I consider trial by jury as the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution.”


In a nation gone mad with government authority and the rising police state, the jury vote is by far the most important vote in the American political system.

Vote to acquit anytime you serve on a jury and you believe the law is wrong, even if it hangs the jury.

That was the intent of the founders of our constitution and to veto bad laws is to be a patriot in the truest sense of the word.

An honest juror must never let a person go to jail who broke a law he thinks is unjust, when it is being unjustly applied, or when the punishment is unjustly harsh for the offense committed,  no matter what the government judge tells him.

As a juror, you have the power to judge the law and a judge cannot punish a juror for his verdict, even if he is the only one who votes to acquit and hangs the jury.

That is the constitution. Understand it and stop whining about the loss of freedom.

The power of your freedom is in the hands of the people on the jury, not the government.

The judges who ruled against Obamacare are following Scalia down a terrible path of interpretation.

Thursday, July 24th, 2014


Supreme Court Justice Antonin Scalia’s strict textualism is gaining traction in some courts.

Photo by Alex Wong/Getty Images

Unless you are a lawyer or a glutton for punishment, you probably want to avoid reading the new D.C. Circuit and 4th Circuit opinions reaching conflicting results on the legality of key provisions of the Affordable Care Act—the parts that provide subsidies for Americans who sign up for health insurance through the exchanges the law created. The opinions are full of jargon parsing the intricacies of the mammoth health care law. But well within the weeds of these lawyerly discussions is a more fundamental question: Is it the courts’ job to make laws work for the people, or to treat laws as arid linguistic puzzles?

At the heart of the 2­–1 D.C. Circuit ruling striking down subsidies for anyone getting their insurance from a federally run rather than state-run health care exchange is a theory for interpreting statutes called “textualism.” Modern textualists view the job of courts’ interpreting statutes as puzzle solving, using dictionaries and grammatical rules known as “canons of construction” such as the “last antecedent rule.” Strict textualists generally won’t look at legislative history—records of what members of Congress said on the floor or what is contained in House or Senate committee reports, for example—to figure out what Congress intended. Just the text.

Justice Antonin Scalia of the Supreme Court is the leading proponent of textualism, an approach he justifies as required by the Constitution and better than the alternative of using legislative history. He thinks judges unreliably cherry-pick legislative history, quoting the late Judge Harold Leventhal’s quip that it’s “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” Before Scalia, textualism was one tool among many for interpreting statutes. But now, thanks to his relentless campaigning for the textualist approach, for many strongly conservative judges, the text is the beginning and the end of the analysis when it comes to the meaning of a statute.

Rigid textualism can lead to harsh results. Consider the 1990 case of United States v. Marshall, for example, involving the sentencing of a drug dealer who was distributing LSD.  The LSD was sold on blotter paper. According to another leading textualist, Judge Frank Easterbrook of the U.S. Court of Appeals for the 7th Circuit, the drug dealer’s sentence had to be based not only upon the weight of the LSD itself, but also the blotter paper, under a federal sentencing statute that required sentencing based upon the weight of a “mixture or substance containing a detectable amount of” the drug. Easterbrook had no problem imposing a much harsher sentence on the dealer given his narrow reading of the law, even though the weight of the paper had nothing to do with the severity of the crime. As Easterbrook just wrote in another case about statutory interpretation, “the text is what it is, no matter which side benefits.”

Dissenting in the LSD case, Judge Richard Posner, one of Easterbrook’s colleagues, explained both the absurdity and the harshness of Easterbrook’s analysis: “A quart of orange juice containing one dose of LSD is not more, in any relevant sense, than a pint of juice containing the same one dose, and it would be loony to punish the purveyor of the quart more heavily than the purveyor of the pint. It would be like basing the punishment for selling cocaine on the combined weight of the cocaine and of the vehicle (plane, boat, automobile, or whatever) used to transport it or the syringe used to inject it or the pipe used to smoke it. The blotter paper, sugar cubes, etc. are the vehicles for conveying LSD to the consumer.”

The D.C. Circuit’s Obamacare majority opinion used similar unfeeling tools of interpretation. As Emily Bazelon carefully explained, the part of Obamacare at issue provided subsidies for people who buy health insurance in exchanges “established by the State under section 1311” of the Affordable Care Act. The majority held that this part of the law excluded subsidies for people who joined a federal exchange in the 36 states that did not establish their own exchanges. This was unambiguous, the majority said, even though other parts of the law did not seem to make sense given this interpretation. And then the court refused to defer to the IRS’s reasonable interpretation that anyone in a state or federal exchange would be equally eligible for a subsidy. Courts are supposed to defer to agencies on ambiguous statutes because of their expertise and experience in implementing federal laws.

The three judges on the 4th Circuit who upheld the Obamacare subsidies, as well as Judge Harry Edwards, the dissenter on the D.C. Circuit, saw the language of the statute as less clear than the D.C. Circuit majority. And they saw good reason to defer to what they considered to be the IRS’s reasonable interpretation of the statute. But there is something more fundamental at stake.

Edwards, in his dissent, called the lawsuit a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act.” Judge Andre M. Davis of the 4th Circuit put it even more bluntly. He accused the challengers who sued to block the subsidies of asking the court to help them “deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.”

The 4th Circuit judges, and Edwards, were looking at the whole statute to make it coherent and to make the law work. There is a long tradition of reading statutes in this purposeful way, and a few decades ago, the opposing strict textual reading likely would not have been taken seriously. Today, however, arguments that were once considered “off the wall” are now, in Yale law professor Jack Balkin’s terms,“on the wall.”

The counterargument—that courts have an obligation to make laws work—is especially important these days, when Congress is barely working. In this time of political polarization, Congress is much less likely to fix any statutes, much less a statute as controversial as Obamacare. The judges surely know that the courts, rather than Congress, will have the last word on the statute’s meaning.

It is not a coincidence, as Emily points out, that judges appointed by Republican and Democratic presidents have divided along party lines in these cases. I do not believe this is because Republicans dislike Obamacare and Democrats like it. It is because Republican presidents now appoint judges who stick to textualism even when it leads to harsh results while Democratic presidents are more likely to choose judges who will look at the big picture and the human costs, when they’re parsing the words of a law.

Fortunately for those of us who side with the second approach, Justice Scalia’s strict textualism does not have many takers on the Supreme Court, even among his fellow conservatives. If and when these cases make it to the Supreme Court, let us hope a majority will not let the fate of the health care for millions of people rest on a chary and uncharitable exegesis.

Online digitized court records now available in Boone, Campbell, Kenton, Gallatin and Franklin Counties…

Thursday, July 24th, 2014

A statewide project to digitize court records – and eventually make them more accessible to the public – advanced this week with the launch of electronic filing in Kenton County Circuit Court.

Boone, Campbell, Kenton, Gallatin and Franklin counties now provide the 24-7 service for civil cases.

But the goal is to get all 120 Kentucky counties and all types of cases operating on a single system by the end of 2015, said Kentucky Supreme Court Justice Michelle Keller, chair of the courts’ Technology Governance Committee and leader of this effort, already 10 years in the making.

Here in Northern Kentucky, the goal is to give the public the ability to look up cases online – for a nominal subscription fee – by the end of the year or early next year, Keller said.

“Many people have worked very hard to take this first step in making our system more efficient, cost-effective and better able to meet the needs of our citizens,” she said.

Funding had been the system’s biggest hurdle, Keller said, until the Kentucky Legislature gave the state’s courts permission in 2013 to borrow $28.1 million – enough to get everyone up and running.

A closer look at the current system strengthened the committee’s argument for an upgrade, revealing an aging infrastructure, rife with security risks, Keller said.

“It’s a win-win for everyone,” said Boone Circuit Clerk Dianne Murray, whose court has had a couple hundred cases filed electronically since May.

Murray has been pleased with the system after working out a bug that led to lengthy waits on credit card transactions.

E-filing simplifies the work for court clerks, lawyers and judges.

Deputy clerk Sherry Goodridge handled Kenton County’s first e-filing, a foreclosure, Wednesday.

“It was very easy to do,” said Good­ridge, estimating it saved her 30 minutes compared to the in-person system – the only way complaints were filed before.

Instead of writing everything out by hand and then entering it into the state’s computer database, she was able to print the file and it was automatically entered into the state system.

In Kenton County the e-filing system also allows clerks to send court summons directly to the sheriff’s office, which serves those summons, instead of sitting in a mailbox awaiting a deputy to pick them up each day.

E-filing should also save law firms and legal aid agencies time and money, Keller said, because they won’t have to constantly send runners to and from the court houses to file and pick up documents.

Keller hopes all of these efficiencies will reduce the cost of doing business in the courts.

She does not, however, believe it will cost court employees their jobs because most clerk’s offices are already understaffed.

“Retirements and natural attrition should take care of it,” said Keller.

She’s eager for the Court of Appeals and Supreme Court to be included in the effort, too, so she can carry around a DVD or thumb drive of the cases she reviews, instead of lugging around boxes and boxes of records.

Keller sees this as just another efficiency in the Kentucky court system, which has already done away with bail bondsmen, records court proceedings with audio and video (instead of relying on court reporters) and has implemented video arraignments.

“By studying other state’s (computerized) systems, we’ve learned from their mistakes and successes,” Keller said, “and think we’ll have one of the best systems in the country.” ■

Federal appeals court panel deals major blow to health law

Tuesday, July 22nd, 2014


A federal appeals court panel in the District of Columbia struck down a major part of the 2010 health-care law Tuesday, ruling that the tax subsidies that are central to the program may not be provided in at least half of the states.

Read more at:

By Tom Howell Jr.


The Washington Times

Tuesday, July 22, 2014

Bottom of Form

Millions of Americans are not entitled to government health insurance subsidies under Obamacare because of the way the law is written, a divided three-judge panel of the D.C. Circuit Court of Appeals ruled Tuesday.

In a decision that could blow a massive hole in President Obama’s signature domestic achievement, the court held that people living in states that relied on the federal government to set up their insurance market exchanges cannot offer the subsidies considered critical to making coverage affordable.

The D.C. Circuit Court of Appeals ruled the administration used an IRS rule to stretch the meaning of the Affordable Care Act, which said financial aid to to low- and middle-income people should only flow to exchanges “established by the State.” If that means only state-run exchanges, it would cut off subsidies to two-thirds of the nation.

The 2-1 decision from a three-judge panel effectively invalidated the IRS rule that ensured subsidies flowed to every state, and the deciding judges seemed to realize the potential impact of the ruling.

“We reach this conclusion, frankly, with reluctance,” Judge Thomas B. Griffith said in his opinion for the court. “At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly.”

The Obama administration is sure to appeal the circuit’s decision in the case, Halbig v. Sebelius, because the subsidies are a huge draw for Obamacare customers. Without that selling point, the reforms would effectively collapse under the weight of premiums that are no longer affordable.

White House press secretary Josh Earnest said the ruling will have no immediate  impact on consumers’ ability to receive tax credits right now, and the administration is “confident” about the appeal that the Justice Department will be making.

“While this ruling is interesting to legal theorists, it has no practical impact,” Mr. Earnest said.

But Republicans wasted no time in cheering the blow to the White House, which comes on top of a Supreme Court victory in the Hobby Lobby case that allowed closely held corporations to ignore Obamacare’s contraception mandate.

“For the second time in a month, the courts have ruled against the president’s unilateral actions regarding Obamacare,” Speaker John A. Boehner, Ohio Republican, said. “The president has demonstrated he believes he has the power to make his own laws. That’s not the way our system of government was designed to work.”

Under the court’s ruling, only the 14 states and the District that have taken on the responsibility for their exchanges would be able to dole out premium tax credits to their residents.

Other states, most with Republican governors or state legislatures, refused to set up the exchanges, forcing the federal government to step in for them.

To redress the potentially fatal blow to its signature law, the administration will likely seek an “en banc” hearing on the case by all the judges in the D.C. Circuit. That may be more likely to go their way, as Republicans have accused Democrats of packing the court.

Court rules allow any active member of the appeals court to vote for an en banc hearing, according to I. Glenn Cohen, a professor at Harvard Law School.

“There is nothing in the rules that say that people who were confirmed after the decision was taken up but before it was issued do not get to sit, so I imagine it means the now-Democrat stacked group will vote for en banc rehearing,” he said.

Bottom of Form

If Tuesday’s decision is upheld in the long run, about 5 million Americans who used the federal exchange will see their health costs soar because they no longer have subsidies to bring down their premiums, according to Avalere Health, a Washington-based consultancy.

“The responsibility for that lies squarely on the shoulders of the president,” Michael Cannon, director of health policy at the libertarian Cato Institute, told The Washington Times in a recent interview.

Mr. Cannon, a chief architect of the legal theory behind the Halbig case and an opponent of Obamacare, said he told “everyone who would listen” not to set up a state-run exchange because the subsidies could not legally flow to those states.

The complaining individuals and entities in Monday’s case were from states that opted not to set up their own health exchanges. To buttress their argument, they said the subsidies produced a ripple effect in which they were no longer insulated from the law’s twice-delayed employer mandate, a rule that requires companies with 50 or more full-time employees to offer health coverage or pay fines.

The rule is triggered once an employee takes advantage of government subsidies on an Obamacare health exchange. Without any subsidies, the plaintiffs reasoned, they would not have to worry about the employer mandate.

The Obama administration argued that Congress always intended the Health and Human Services Department to “stand in the shoes” of states that decided not to run their own marketplaces. That’s what it did during the law’s first enrollment period, setting up to serve the three dozen states that deferred to the federal government.

Mr. Earnest said there are four Obamacare legal challenges working their way through federal courts, and two district courts have ruled in favor of the administration.

“There is decidedly mixed legal opinion about this,” Mr. Earnest said. “For those keeping score, we’re still ahead, two-to-one.”

• David Boyer contributed to this report

Supreme Court justices’ cellphone privacy ruling likely to have broad impact

Tuesday, July 22nd, 2014


 A historic Supreme Court term ended with a flourish of major rulings that marked a bitter defeat for racial minorities and a groundbreaking victory for gay rights, all in the space of a day. The justices struck down parts of two federal laws _ the Voting Rights Act and the Defense of Marriage Act _ that were passed with huge bipartisan majorities of Congress. Yet, only one justice at the center of this conservative-leaning court, Anthony Kennedy, was on the winning side both times. Kennedy joined the four more conservative justices on voting rights and he was with his liberal colleagues in the gay marriage case. (AP Photo/Pablo Martinez Monsivais, File)


July 21, 2014

    Sign posted in window gets surprising reaction from visitors.


By USA Today

Sunday, July 20, 2014, 8:15 p.m.

WASHINGTON — Privacy rights advocates are hoping the Supreme Court’s unanimous ruling last month on cellphone privacy will have a broad impact on the clash between privacy and technology — perhaps even leading to decisions striking down the government’s post-9/11 surveillance of Americans’ telephone records.

The justices’ 9-0 ruling that police need a warrant to search a cellphone — issued amid a flurry of late June decisions on religious liberty, abortion protests and presidential powers — was arguably the most significant of the 2013-14 term.

Unlike cases decided by narrow 5-4 margins or those in which justices differed over the reasoning, Chief Justice John Roberts’ cellphone opinion was notable for “the emphatic, emphatic message from the court that digital is different,” said Jeffrey Fisher, the Stanford University law professor who successfully argued one of the two cellphone cases.

Theodore Simon, incoming president of the National Association of Criminal Defense Lawyers, is devoting his first column in the group’s monthly magazine to the potential impact on precedents. He foresees “a sea change in how one would look at future cases that in any way involve searches and seizures, and where there is the possibility of the revelation of significant personal data.”

The ruling could affect cases involving the use of drones to collect large amounts of digital data. “Drones aren’t like the ever-present policeman with binoculars in a helicopter,” said Stephen Vladeck, a law professor at American University Washington College of Law.

Read more:
Follow us: @triblive on Twitter | triblive on Facebook

In re the matter of: Dana M. Cohen – Judicial Conduct Commission Public Reprimand

Monday, July 21st, 2014

Judicial Conduct Commission

P.O. Box 4266, Frankfort, Kentucky 40604-4266




Contact: Ms. Jimmy Shaffer, Executive Secretary,


For Immediate Release


Agreed Order of Public Reprimand


In re the matter of:  Dana M. Cohen


FRANKFORT, KY., July 21, 2014 –


The Judicial Conduct Commission makes public the Agreed Order of Public Reprimand, In Re the matter of: Dana M. Cohen.


To access the order, use this link:


Judicial Conduct Commission

The mission of the Kentucky Judicial Conduct Commission is to protect the public, to encourage judges, commissioners and candidates for judicial office to maintain high standards of conduct, and to promote public confidence in the integrity, independence, competence, and impartiality of the judiciary.


The Commission accomplishes this mission through its investigation of complaints of judicial misconduct, wrongdoing or disability. In cases where judges, commissioners and candidates for judicial office are found to have engaged in misconduct or to be incapacitated, the Kentucky Constitution authorizes the Commission to take appropriate disciplinary action, including issuing admonitions, reprimands, censures, suspensions, or removal from office.



Saturday, July 19th, 2014
Beware of scam e-mails which use my name or others names to get you to open their hacking and to provide them personal info about you.  One letter sent to me stated:
How are you, view and share the important document that I have send to you using the Secure Docs.
LawReader would never request personal info that follows in their questions.
Stan Billingsley  Senior Editor

U.S. Supreme Court won’t stay Sherlock Holmes copyright ruling

Friday, July 18th, 2014


by Kevin Melrose | July 18, 2014 @ 8:00 AM | No Comments |

Unfortunately for the estate of Arthur Conan Doyle, “The Case of the Sherlock Holmes Copyrights” hasn’t developed into much of a mystery, as its efforts to prevent many of the stories and characters from lapsing into the public domain have met with one defeat after another.

The latest came Thursday from U.S. Supreme Court Justice Elena Kegan, who refused to delay the June 16 decision by the Seventh Circuit that the characters and story elements in the first 50 Sherlock Holmes stories are no longer protected by U.S. copyright, and therefore available for other writers and artists to use and adapt.

Considering those stories were published before Jan. 1, 1923, it might seem obvious that they had lapsed into the public domain in the United States. However, the Doyle estate has long been protective of the lucrative property, insisting that publishers, television networks and film studios pay a licensing fee to use the characters and story elements. Many, including Warner Bros. and CBS, have complied. But Holmes expert Leslie Klinger, who served as a consultant on Guy Richie’s film adaptations, refused to hand over $5,000 while he was assembling In the Company of Sherlock Holmes, a collection of new stories written by different authors. When the Doyle estate sent a letter to the publisher threatening to block sales of the book through Amazon, Barnes & Noble and other retailers, Klinger sued.

The Doyle estate argued that Sherlock Holmes is a”complex” character, and effectively incomplete until the author’s final Holmes story was published in the United States, leaving the works protected by copyright. While certainly novel, neither a trial judge nor the Seventh Circuit Court of Appeals bought it, ruling that the pre-1923 stories have indeed lapsed into the public domain (the 10 published after 1922 remain under copyright until 2022).

“We cannot find any basis in statute or case law for extending a copyright beyond its expiration,” U.S. Circuit Judge Richard Posner wrote in the appeals court’s decision. “When a story falls into the public domain, story elements — including characters covered by the expired copyright — become fair game for follow-on authors …”

Posner last week rejected the estate’s bid to stay the ruling while it prepares a petition to the Supreme Court, which will center on whether Klinger should’ve been permitted to file his declaratory judgment lawsuit before he published the Holmes collection.

“We appreciate the court’s consideration of our request as well as the rarity with which the court grants a stay pending appeal,” estate attorney Benjamin W. Allison told Law360 on Thursday. “We continue to believe that the Seventh Circuit erred when it split from all other courts in the country and declined to require Mr. Klinger to come forward with his finished book for actual comparison to the protected aspects of Sherlock Holmes’s character.”

Tagged: Arthur Conan Doyle, copyright, legal, Leslie Klinger, Sherlock Holmes

Justice Department Reaches Agreement with Orange County Clerk of Courts in Florida to Ensure Equal Access to Court Records for Blind Individuals

Friday, July 18th, 2014

 U.S. Department of Justice []
Sent: Thursday, July 17, 2014 11:16 AM
To: Chappell Shelley
Subject: Justice Department Reaches Agreement with Orange County Clerk of Courts in Florida to Ensure Equal Access to Court Records for Blind Individuals


The Justice Department announced today that it has reached a settlement with the Orange County Clerk of Courts in Florida to remedy violations of the ADA. The settlement resolves allegations that the Clerk of Courts failed to provide a blind attorney with electronic court documents in an accessible format, despite repeated requests.  Under the settlement agreement, the Orange County Clerk of Courts will provide individuals with disabilities with any document in the official court record in an accessible format upon request, and ensure that the Clerk of Courts’ website is accessible to individuals with disabilities, including blind individuals, in accordance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA, available at

To find out more about this settlement or the ADA, call the Justice Department’s toll-free ADA information line at 800-514-0301 or 800-514-0383 (TDD), or access its ADA website at

Law prof analyzes former SCOTUS justice’s 6 proposed constitutional amendments, deems these 2 worst

Thursday, July 17th, 2014

Posted Jul 16, 2014 8:21 AM CDT
By Debra Cassens Weiss

imageCover image from Hachette Book Group.

Justice John Paul Stevens backed six constitutional amendments in a book published in April, including amendments that would abolish the death penalty and take away an individual right to bear arms.

Those may be the most controversial proposals, but they are not the most ill-considered, according to Northwestern University law professor Steven Calabresi. In a review of Stevens’ book for theWall Street Journal (sub. req.), Calabresi says these proposed amendments are more damaging:

• Allow Congress to force state officials to enforce federal law.

“It isn’t hard to imagine what would follow,” Calabresi writes. “State officials would end up working for the federal government; they would lose their independence; and the states would pay the resulting costs.”

Josh Blackman’s Blog says the proposal would amend the supremacy clause to state that judges “and other public officials” in every state are bound by the Constitution and laws of the United States. The proposed amendment is intended to overturn a 1997 Supreme Court decision, Printz v. United States, which said states can’t be forced to participate in the federal system of gun background checks, according to coverage of the book by the Associated Press and Business Insider.

• Require state and congressional districts to be “compact and composed of contiguous territory” and require states to justify departures from the requirement based on neutral criteria. An interest in enhancing or maintaining political power would not be a neutral criteria.

Calabresi says the proposal mandates judicial review of gerrymandering, transferring “historic state power to the federal courts, further politicizing the courts and reducing state power.” According to Calabresi, the amendment “would put special emphasis on the duty of federal courts to monitor the compactness of congressional districts.”

Calabresi says legislative redistricting should be done by politically accountable state legislatures. He thinks Congress could pass a law, however, requiring congressional districts to be compact and contiguous.

Stevens’ book is Six Amendments: How and Why We Should Change the Constitution. His other proposals would authorize laws that impose reasonable limits on campaign spending and would eliminate sovereign immunity for violations of the Constitution or federal laws.

Related articles: “Legalize marijuana, urges retired SCOTUS justice” “Ret. Justice Stevens pushes for campaign finance law changes in Senate hearing”

U.S. Supreme Court rules Aereo in violation of copyright laws

Wednesday, July 16th, 2014

July 17 2014

On June 25 2014 the US Supreme Court decided ABC v Aereo, reversing a Second Circuit Court of Appeals decision and holding (six to three) that Aereo’s service of providing mini-antennae to each of its thousands of customers to receive over-the-air broadcasts counted as a public performance of those broadcasts under Section 106 of the Copyright Act. It found that essentially, Aereo was no different from cable companies, which are subject to limitations on their ability to freely transmit programming under the Copyright Act, such as the requirement to pay compulsory licence fees.

At oral argument, Aereo had difficulty in trying to explain why it constructed its system other than to evade copyright law. Furthermore, its claim that it was no different from a store that sold antennae so that individuals could watch over-the-air broadcasts proved unpersuasive: in such a hypothetical transaction, Aereo would no longer own the antenna and the entire transaction would be completed with no more involvement by Aereo when the programming was actually transmitted. The court also was not swayed by the claim that Aereo did not perform “publicly”, stating that even if the distribution of a programme were made in separate transmissions, one per antenna, it would still be a transmission to the public.

Aereo’s inability to differentiate itself from a traditional cable system ultimately sealed its fate. The court also clearly did not like the fact that Aereo’s customers had no ownership interest or other rights in the copies they were receiving. This fact might distinguish Aereo’s system from, for example, remote storage DVR systems, where the individual users receive programming for which they and their cable companies have already paid fees.

Justice Scalia filed a dissent in which he mocked the majority’s blurred line and said that it would lead to many more cases in which courts would have to figure out how much the system in question resembled a cable operation.

In briefs and argument, Aereo and some amicus briefs tried to make it appear that a decision against Aereo could have sweeping negative ramifications for other technologies, including cloud computing. The court went out of its way to clarify that its decision did not consider and would not affect such technologies today. Given what the court focused on in deciding against Aereo, it is highly unlikely that the language in Aereo could be used to jeopardise technology whose main purpose is to allow customers to store copies of works they already own in the cloud.

The court’s decision is in line with the rulings of the European Court of Justice and the UK High Court decision in ITV v TVCatchup, which also held that the author’s right of communication to the public covers any transmission or retransmission of a work to the public not present at the place where the communication originates, by wire or wireless means, including broadcasting.

For further information on this topic please contact Joseph I Rosenbaum at Reed Smith LLP by telephone (+1 212 521 5400), fax (+1 212 521 5450) or email ( The Reed Smith website can be accessed at www.reedsmith.c

The Difference Between an Expert and an Expert Witness

Tuesday, July 15th, 2014


   Written by: 

A nearly universal mistake that litigators make is saying – and therefore thinking – the word “expert” and not “expert witness.” Among ourselves. To colleagues. To opponents. To the consultants and expert witnesses we hire. To judges. And worst of all, to jurors. It seems like a harmless shorthand. It is not.

Why is shortening “expert witness” bad for the attorney, the expert witness pool, and ultimately your client?

First things first. The Evidence Code creates two types of witnesses: percipient witnesses who talk about facts they perceived; and expert witnesses who are allowed to give opinions because they have specialized knowledge that the court rules helpful to the fact-finder. So the first thing to remember afresh is that expert witnesses are a creature of the evidence code, not a fact of nature or logic.

Their job, in other words, is not to come into court and be an expert. Their job is to come into court and be a witness. The better your witnesses are as witnesses, the more helpful they are to the jurors and therefore the more valuable they are to you and your client. It doesn’t matter which section of the evidence code permits their testimony. When we universally and exclusively talk among ourselves about “the expert,” we are focusing on the wrong word.

Lawyers in general do not give enough thought to how jurors actually reach their decisions, instead focusing on The Case We Are Presenting. Litigators don’t think enough about how jurors receive, filter, block, distort, misunderstand, import, and interpret all the inputs – and ultimately create the case out of the ingredients given to them by both sides, by the court, and the mystery ingredients they brought themselves.

Juror-Expert Relationship Status: It’s Complicated

I recently worked on a case in which the opponent’s expert witness was a true rock star in a specific autoimmune condition, certainly a contender for “most knowledgeable doctor in America” on this topic. Unparalleled credentials. But we spoke to the jurors after the trial ended, and they found her to be annoying and off-putting as a person and “too full of herself.” Stellar expert. Middle-rate witness. Too bad for their side that they didn’t need a great expert. They needed a great expert witness. And the very last person in the large cast of litigation teams, jurors, and court staff to know that Dr. Rockstar was not a great witness and not adding value to their side’s case: the guy who paid her a small fortune because he was impressed by her credentials. Always the last to know.

Two things to know from studies of jurors:

(1) They overwhelmingly believe that attorneys can always find an expert to support their point of view, and

(2) They believe that there are disagreements within any profession.

Hence, there is no automatic buy-in for an expert witness just because a stranger with an agenda is pushing them to. Rather the opposite: jurors actually build resistance to us and the expert witness as we pitch them too soon.

What I am suggesting here is a significant mind-shift in the legal world. To downplay the “expert” part of the phrase “expert witness” because of juror disregard and disdain for expert witnesses is to break with a long history of built up faith that jurors think and believe how we tell them to. They don’t. It’s a fiction.

The Psychology of Jurors and the Value of Your Expert Witness

First, it is critical to understand this one fact about jurors: while they do not particularly like or trust expert witnesses, they do like people who can help them understand the material in a case. Remember that jurors got their job because they specifically do not really know anything about the subject matter of the case—those with extensive knowledge in the subject likely got dismissed during jury selection. So they are grateful for help. And how can your expert witness help?

Be a teacher, never an advocate.

In other words, their value to you is in being an excellent witness, not an impressively credentialed expert. “That side must be right—after all, an expert came in and told us so,” said no juror ever. Merely having an expert witness doesn’t move anything forward for your client. You actually have to win the so-called “battle of the experts.” And you don’t win it by credentials. You don’t win it by out-arguing the other side’s expert. You don’t win it by having a witness who looks the part.

You win it by having the expert witness who is the best teacher.

That means being able to explain the basic concepts of their area with clear language and good metaphors and analogies that make their ideas sticky for laypeople’s brains. That means that that he or she figures out how to present the important ideas of their field with good visuals, or else find someone who is good at visuals to help. (Please, for your and my sake, no slides filled with bullet points.)

It means that they follow a two-step process in delivering their opinions to jurors: Step One is explain the methodology for approaching and analyzing cases like this in general, and why this is the right approach. (E.g., “In cases where there is no external bleeding, we doctors are trained to do this, that, and the other thing. If there were external bleeding, we would do something else because that’s a very different situation, almost nothing to do with these kinds of cases. But there was no external bleeding, so I would then look at . . . “)

Step Two is leading the jury step-by-step in this case, showing how they arrived at their conclusions. (“With Ms. Patient’s case, the notes from the attending doctor as well as one nurse shows that there was no external bleeding. So like I said before, that means that the doctor on duty should have done X, and then when that was done, then do Y. With Ms. Patient, the records give us a complete picture of what happened. Dr. Defendant did . . . “)

What Else Makes A Good (expert) Witness?

In addition, though, a good witness does one other huge thing well that teachers don’t usually have to deal with: cross-examination by the opponent.

It is crucial that your expert witness not engage emotionally with the opposing lawyer. We see it all the time, folks—expert witnesses who are the life of the party when talking to you, and turn into cold, reluctant almost-jerks when talking to the other side. Jurors notice that, and now – presto – the expert witness is an advocate. Credence plummets; jurors no longer feel safe and confident relying upon this person for good input about the subject matter.

The expert witness must make eye contact with jurors from time to time. They become uncomfortable when too long goes by without it. It’s a human instinct.

At some point in your relationship with your expert witness, videorecord him or her during prep. Watch it with your witness – and maybe a consultant. Check for distracting mannerisms, facial expressions they might not be aware they make, staying positive and calm, and really assessing how they would come across to layperson jurors.

Again: it’s not the expert that is going to add the value to your case; it’s the witness.

A Word About Depositions: Maybe the Last Best Chance to Avoid a Bad Outcome

In the age of videorecorded depositions, it is crucial that attorneys do a truly realistic analysis of your expert’s skills as a witness. Why? Because some of those video clips might eventually get shown to jurors if the case goes to trial, such as in the opening statement. Why might the other side do that? Because it works. But it will only work if the witness does not look or sound good on the recording.

You already know that your expert’s performance at deposition will affect the other side’s calculation of their chances at trial. The better your expert witness does at deposition as a witness, the greater the chances that you will be able to settle the case on better terms and sooner, rather than having to pour more resources into this thing to settle it, or even eventually ending up in trial. Therefore, picking the right expert witness and investing in some high quality witness preparation before deposition can often be the smartest investment you can make to bring your case to an advantageous close short of trial.

Bonus tip: As I have said elsewhere, never refer to your expert witness as “expert” in front of jurors. They don’t like experts, so don’t default to a term from of the Evidence Code just out of bad habit. Instead, your expert witness is “an outside engineer we brought in to help us understand the widget,” or “one of the top cancer doctors in the region,” or “a professional accountant we brought in.” That is the frame you want your jurors to adopt about these people anyway.

Extra bonus tip:  Picture the following scene. The jurors see one witness’s testimony end and the attorney calls the next witness, something she referred to as an “expert” during opening statement. Finally, someone unconnected to the company/parties/whatever will give us some perspective and insight into this. Great. . . . Wait . . . Hold it. Why are we hearing about where he went to college? What drew him to the field of forensic widgetology? What does it mean to “deliver” a paper to the American Conference of Blah Blah?

In other words, at the very height of juror curiosity, lawyers tend to put them to sleep and dissipate all that attention before getting to the good stuff. Lawyers think they are accomplishing two things, qualifying the witness to testify as an expert under the evidence rules, and “building credibility” with a good credential carpet bombing. Jurors don’t want to hear that stuff. They want a few sentences of context for why your expert witness is worth listening to, and then they want what they want: your witness to help them understand what really happened. Qualify your expert witness by stipulation or in limine, but don’t bore the jurors at the moment they want to hear the story.

Rich Matthews, senior trial consultant and member of the California bar, received his J.D. from the University of Oregon School of Law, and brings an impressive background of litigation and negotiation to his trial consulting. His expertise encompasses issue analysis, thematic message and communication strategy, all types of focus group research, communication and presentation strategy, story and frame development, voir dire and juror selection, courtroom presentation skills, and post-verdict juror research.



Related Posts

  1. Connecticut Panel Finds Mechanical Engineering Expert Witness Properly Barred
  2. Arizona Supreme Court Allows Sexual Abuse Expert Witness Testimony, Finds Rule 702 Allows General Testimony
  3. Federal Circuit Says Patent Expert Witnesses Wrongly Barred, Resurrects Smartphone Action in Apple v. Motorola
  4. Expert Witness Fees Video
  5. Oklahoma Appeals Court Says Accident Reconstruction Expert Witness Wrongly Admitted, Reverses Verdict for Defendant Who Struck 12-year-old Boy
  6. U.S. Judge in Colorado Refuses to Exclude Patent Expert Witness in Action Against Google says: Judge Wingate Creates Huge Conflict Of Interest

Monday, July 14th, 2014


July 14th, 2014 ·


Excerpt from


A better title might be: Instant Racing Judge: “No Big Deal, My Son Got Hired By A Race Track’s Law Firm In The Case And There’s Nothing You Can Do About It”

Hold on to your instant racing case hats, ladies, cause the Honorable Judge Thomas Wingate has created an appearance of impropriety to rival nearly everything we’ve seen in months.

On April 30, Wingate, who is hearing the big instant racing case (Family Foundation vs. Kentucky Horse Racing Commission, Kentucky Department of Revenue, Appalachian Racing, Churchill Downs, Ellis Park, Keeneland Association, Kentucky Downs, Lexington Trots Breeders Association, Players Bluegrass Downs and Turfway Park), filed a sue sponte order that blows our minds.

Here’s the deal:

Stoll Keenon Ogden represents some of the tracks in the case. Judge Wingate’s son, who is a first year law student, got hired to work in their Frankfort office. Wingate says it’s no big deal, there’s no conflict, nothing to see here, move along, and filed the order.

To read full story and review pleadings go to:



Vermont court: No DNA collection until conviction

Monday, July 14th, 2014


By BETH GARBITELLI, Associated Press


MONTPELIER, Vt. (AP) — The Vermont Supreme Court ruled Friday that the state can’t collect DNA from suspects in criminal cases unless they have been convicted of a felony.

The split decision court rolls back an expansion of DNA collection that has been both contested and praised for years.

The ruling preserves the presumption of innocence in Vermont, according to defense attorneyDavid Sleigh.

“Your entire genome doesn’t become the property of the state merely because you’ve been charged with a crime,” Sleigh said.

Gov. Beshear, Congressman Rogers Announce Next Steps for Statewide High-Speed Broadband Project

Monday, July 14th, 2014

Governor Steve Beshear’s Communications Office

Press Release Date: Friday, July 11, 2014
Contact Information: Terry Sebastian
Broadband initiative to solidify Kentucky’s place in the new global economy

FRANKFORT, Ky. – Governor Steve Beshear and U.S. Rep. Hal Rogers announced today that two requests for proposals (RFP) are being issued this month on a public-private partnership (P3) project to build critically-needed high-speed broadband Internet access to the farthest reaches of the Commonwealth.

Increasing broadband access in eastern Kentucky is a primary focus of the project.

An RFP was released today by the Commonwealth of Kentucky in conjunction with the Center for Rural Development seeking private partners to build, operate and maintain a statewide open-access, high-speed broadband network. A complementary RFP seeking equity partners for the project will be released next week. The Commonwealth may establish one contract using either the equity or concessionaire model.

The Next Generation Kentucky Information Highway will help Kentucky make tremendous strides toward being a leader both in terms of speed and presence of high-speed Internet connectivity, Gov. Beshear said.

“Infrastructure such as roads, sewers, water lines and classrooms are critical to our quality of life and economic vitality,” Gov. Beshear said. “Today, we also have to invest in another kind of infrastructure – the kind that will break down geographic and financial barriers to education and economic development.”

“This ‘Super I-Way’ will pave a high-tech future for eastern Kentucky,” said Rep. Rogers. “It will launch our rural region into the global playing field, creating new job opportunities, innovative access to healthcare, enhanced educational opportunities, and much more. We are eager to move forward with this project to help grow eastern Kentucky’s economy.”

The initial phase of the project is expected to take two years to build and will include more than 3,000 miles of fiber infrastructure, often referred to as the “middle mile.”

Currently, Kentucky ranks 46th in high-speed broadband Internet availability. Nearly a quarter of the Commonwealth’s population – 23 percent – has no access to broadband.

“Today, only about half of Kentucky’s households use broadband Internet service, and nearly one-quarter can’t access broadband at all,” Gov. Beshear said. “We’re going to fix that with an ambitious plan to extend broadband access, initially focusing on eastern Kentucky.”

The push for reliable, accessible high-speed broadband is one recommendation that emerged from “SOAR,” the “Shaping Our Appalachian Region” initiative that seeks to move Kentucky’s Appalachian region forward.

“Much like previous generations’ efforts to build sewer and water systems, the electric grid and paved highways, this broadband initiative will solidify Kentucky’s place in the new global economy,” Rep. Rogers said. “Our investment in it will pay dividends in the years ahead.”

The RFP is available online at  Click on the Vendor Self Service link and choose public access.

For more information about SOAR, visit and follow SOAR activities on Facebook @ShapingOurAppalachianRegion and on Twitter @SOAR_EKY. To contact the SOAR office, call 606-444-5127 or 606-437-5127.

About the SOAR initiative
The SOAR initiative was launched by Gov. Beshear and Congressman Rogers in late 2013, after a stunning downturn in the coal market exacerbated historic challenges in eastern Kentucky related to unemployment and poverty. More than 1,700 Kentuckians attended a one-day SOAR summit in Pikeville in December. SOAR is intended to help the region develop and put into action new locally-oriented strategies to attack persistent challenges.


Medical malpractice law unfair to families (Wisconsin)

Monday, July 14th, 2014

By Chris Stombaugh
July 12, 2014

She is the iconic figure of every American courtroom. Blindfolded and holding a scale, Lady Justice decides what constitutes justice without fear or favor, regardless of a person’s money or power.

Justice is blind, but I worry that she is also becoming deaf and mute.

Over the last 20-plus years, a series of laws and court cases in Wisconsin have said that a wrongful death medical malpractice claim can only be filed on behalf of a minor child or a spouse. A two-tiered system has been designed, one for general wrongful death cases and those caused by medical malpractice.

Many families are left without justice because they can’t come into the courthouse. What remains is a biased system that delivers justice by separating victims based on their age and marital status. This is not progress. In fact, it’s quite the opposite.

I applaud the Milwaukee Journal Sentinel for its recent series on medical malpractice law. Dozens of Wisconsin families have lost a loved one because of medical malpractice and then were denied justice.

While doctors claim malpractice cases are dropping because of better medical care, the facts to support that claim are sadly lacking. Last September, the prestigious Journal of Patient Safety reported that as many as 210,000 to 440,000 people die from preventable medical errors a year. On a local level, anywhere from 4,200 to 8,800 Wisconsinites could be dying in hospitals each year due to preventable medical errors.

Sadly, these errors not only hurt families, they drive up the cost of health care for us all. Because American medicine accepts error as an inevitable consequence of treatment, our hospitals, insurers and government do little to respond to these often system failures, which can be repeated, causing tragic and unnecessary deaths.

This is why the civil justice system is so important. It can review the facts and determine what went wrong as well as compensating families for their losses caused by the unnecessary death.

But as we have seen, the courthouse doors are shut to many families. To lose a child and be stopped at the courthouse steps because your child is too “old” (18 or older) defies comprehension. We’re sorry about your mother, but since your father is gone, there really isn’t anyone allowed to fight for your mom. Once again, Wisconsin is at the most extreme fringe of what the majority of America considers acceptable.

The simple truth is, Wisconsin law gives careless doctors a free pass if your adult child or single parent dies because of medical negligence. If a doctor hits my 19-year-old child with his or her car, the doctor is held accountable. But if that same doctor botches my 19-year-old’s surgery and my child dies, there are no consequences.

Today, “children” can stay on their parent’s health insurance policy until they are 26, but still lose a key component of their rights at 18. How can that be? Times change; standards change. We can change the law. All it takes is a new law saying all children, adult or minor, have the right to bring a claim in a medical negligence wrongful death claim. If it passes, the system rights a wrong and justice is a big step closer to fair for everyone.

The current law is wrong, and we need to change it. Period.

Chris Stombaugh is president of the Wisconsin Association for Justice.


Friday, July 11th, 2014

Kentucky Bar Association Membership Dues for 2014-2015 will be mailed on July 18 and members will be able to pay online, quickly and conveniently, with a credit card or electronic check. A member number and password will be required to access the payment system. For credit/debit card payments, a 3.5 percent administrative fee will be assessed. For electronic check payments, a $2 administrative fee will be assessed.

The KBA membership cycle runs July 1-June 30 of each year. Payments are due on or before September 1, 2014. After that date, an additional late fee payment of $50 will be assessed. For more information, please contact the KBA Membership Department at (502) 564-3795.


Friday, July 11th, 2014


At common law, a defendant is liable to pay damages in tort for actions intended to interfere with the plaintiff’s contractual relations with a third party.

In an intentional interference claim, the burden is on the plaintiff to prove the elements of the claim rather than on the defendant to prove that its acts were justified. To prevail on the claim, plaintiff must prove four elements: (1) that a valid contract existed, (2) that defendant had knowledge of the contract, (3) that defendant acted intentionally and improperly,  and (4) that plaintiff was injured by the defendant’s actions. United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812, 551 N.E.2d 20 n. 6 (Mass. 1990).

See also tortious interference.


Shafir v. Steele Recognizes New Tort of Intentional Interference with Plaintiff’s Own Contractual Performance

January 1, 2001

by Leigh-Ann M. Patterson

by Leigh-Ann M. Patterson

This article first appeared in the Boston Bar Journal in the January/February 2001 issue.

I. Introduction

In a case of first impression (Shafir v. Steele, 431 Mass. 365 (2000)), the Supreme Judicial Court recognized §766A of the Restatement (Second) of Torts (the “Restatement”), which imposes liability for conduct which intentionally interferes with a plaintiff’s own contractual performance. Prior to Shafir, the Massachusettscourts had recognized only one of two Restatement formulations of the tort of intentional interference with contractual performance. In Shafir, the second formulation was squarely adopted, significantly broadening the scope of potential liability for wrongfully interfering with others’ economic rights.

II. Factual Background: A Case of Bad News for a Newspaper

In Shafir, a newspaper owner intentionally and wrongfully interfered with another business person’s contract to buy the newspaper’s building by threatening her with a frivolous, but damaging, lawsuit if she did not back out of the deal. The newspaper owner was Defendant Duane A. Steele (“Steele”) and his newspaper, published by the Provincetown Advocate News Corporation, was called The Advocate. In 1993, Steele’s newspaper was experiencing financial difficulties and defaulted on its loan and mortgage with Shawmut Bank (“Shawmut”).

Shawmut and Steele worked out a loan restructuring agreement, whereunder Shawmut would foreclose on the mortgaged property, but Steele’s children would tender a bid of at least $175,000 at the foreclosure sale. They also agreed that if a third party happened to outbid Steele’s children, Shawmut could accept the third party’s bid and their work-out agreement would become null and void. To Steele’s chagrin, that is exactly what happened.

Frances Shafir (“Shafir”), a local business woman who owned a nearby theater, outbid Steele’s children with an offer of $240,000. Shafir signed a purchase and sale on the spot and tendered a $10,000 deposit. Distraught over the thought of anyone other than his children owning the property, Steele decided to “persuade” Shafir not to go through with the purchase.

Just hours after the foreclosure sale, Steele paid Shafir a “menacing” visit and let her know he was troubled by what had happened. Two days later, he published an editorial in The Advocate, falsely accusing Shafir of outbidding his children as revenge for an article he had once published that was critical of the theater she owned.1 Three days later, he demanded a meeting with Shafir and her real estate agent, Patricia Shultz (“Shultz”), so that he could show them “papers” that would give them a glimpse of “what they were in for” if Shafir went through with the purchase.

These “papers” turned out to be a Complaint that Steele threatened to file against Shafir and Shultz. The Complaint had been prepared by Steele’s lawyer and alleged that both women committed fraud, extortion, and malicious interference with Steele’s work-out agreement with Shawmut. When Shafir and Shultz read the Complaint, they knew the charges were crimes and described their reactions as being terror, shock, astonishment, bewilderment, and then (later) outrage and anger. At trial, Steele admitted that he had no factual basis for any of the charges he threatened to bring against Shafir and Shultz.

Frightened and intimidated by Steele’s harassment, Shafir told Shawmut she did not want to go through with the purchase.2 Shawmut declared Shafir in breach of their agreement, retained her deposit, and reserved its right to recover additional costs and expenses occasioned by her breach. Shawmut then sold the property to Steele’s children for $175,000. It did not pursue Shafir for the deficit or any related costs or expenses.

Subsequently, Shafir sued Steele for defamation and intentionally interfering with her contract with Shawmut. At trial, the jury returned a verdict in favor of Shafir on both counts. Steele appealed, claiming the trial judge erred in denying his motion for a directed verdict and motion for judgment notwithstanding the verdict on the interference claim, because: (1) Shafir failed to prove that Steele induced a third party (rather than herself) to breach a contract, and (2) the jury instructions and special verdict form were flawed because they incorporated the elements of §766A of the Restatement, which Steele claimed was “not the law of Massachusetts.” On appeal, the Supreme Judicial Court affirmed the lower court’s ruling and expressly recognized the tort of intentional interference with a plaintiff’s own contractual performance.

III. Historical Development of Tort of Intentional Interference

1. Origin of Tort Grounded in English System of Serfdom


Curiously enough, the modern day tort of intentional interference has its roots in a 14th century English statute which was passed in response to a labor shortage caused by the plague. Designed to reinforce the English system of serfdom, the statute prohibited agricultural workers from quitting their jobs and accepting work elsewhere.3 The statute also provided that any employer who hired such an agricultural worker would be held liable.4

Over time, English courts extended this principle beyond agricultural workers to other types of employees, as demonstrated by the classic case of Lumley v. Gye,5wherein the defendant persuaded an opera singer to breach her employment contract with the plaintiff opera house, defendant’s competitor. According to modern day scholars, this line of cases “converted a contract right between A and B into a property right that binds everyone who knows of the contract.”6 In short, this tort recognized the principle that a person’s business is property that is entitled to protection from harm by any one who is not acting in the exercise of a right, such as the right to compete for business.

2. Historical Development of Tort


Historically, liability for tortious interference first developed in cases of intentional interference “by violence, fraud or defamation—conduct that was essentially tortious in its nature, either to the third party or to the injured party.”7 Over time, liability was expanded to situations where a defendant’s conduct was not prima facie “tortious” in the traditional sense (i.e., the conduct would not support an independent basis of tort liability, such as for defamation or copyright infringement), but it nevertheless resulted in economic harm to a plaintiff. With this expansion came a remedy for situations wherein a defendant had committed stand-alone economic harm to plaintiff’s business or prospective contractual relations without engaging in any other type of tortious conduct.

An historical discussion of this tort necessitates the mentioning of two importantMassachusetts cases, Carew v. Rutherford and Walker v. Cronin, which laid the foundation for this tort in Massachusetts.

The case of Carew v. Rutherford, 106 Mass. 1 (1870), is significant because it represents the first time the Massachusetts courts fully embraced the concept of a prima facie tort of interference. In Carew, a plaintiff carrying on a stonecutting business brought claims of extortion and conspiracy against a defendant Journeymen’s Association on the grounds that the latter extorted the plaintiff to pay $500 by threatening to induce craftsmen to leave plaintiff’s employment. The Court reasoned that the defendant’s conduct was analogous to wrongful interference by firing a gun or threatening baseless litigation to scare off customers. The Court opined that:

“[o]ne of the aims of the common law has always been to protect every person against the wrongful acts of every other person, whether committed alone or in combination with others; and it has provided an action for injuries done by disturbing a person in the enjoyment of any right or privilege which he has.” 10.

The Court opined that “as new methods of doing injury to others are invented in modern times the same principles must be applied to them.” Id. at 11.

One year later in Walker v. Cronin, 107 Mass. 555 (1871), a case generally regarded as the seminal American case on tortious interference, the Massachusetts courts squarely adopted the tort of intentional interference. In Walker, the Court was presented with the issue of “whether it is actionable for one person to entice another to refuse to perform a contract made with a third, where no relation of master and servant exists.” Id. at 561. There, plaintiff shoemakers alleged that the defendant had unlawfully and without justification prevented plaintiffs from carrying on their business by willfully inducing employees to leave plaintiffs’ employment. As a result of the defendant’s conduct, plaintiffs “lost the services of said persons, and the profits and advantages they would otherwise have made and received therefrom, and were put to large expenses to procure other suitable workmen and suffered losses in their said business.” Id. at 562.

Relying on the Carew concept of a prima facie tort, the Walker Court noted that “[t]he intentional causing of such loss to another, without justifiable cause, and with the malicious purpose to inflict it, is of itself a wrong.” Id. Discussing the parameters of this tort in the context of the facts of this case, the Court held that:

“every one has an equal right to employ workmen in his business or service; and if, by the exercise of this right in such manner as he may see fit, persons are induced to leave their employment elsewhere, no wrong is done to him whose employment they leave, unless a contract exists by which such other person has a legal right to the further continuance of their services. If such a contract exists, one who knowingly and intentionally procures it to be violated may be held liable for the wrong, although he did it for the purpose of promoting his own business.” Id. at 563-564.

The doctrinal basis for the Court’s decision appeared to be that “in all cases, where a man has a temporal loss, or damage by the wrong of another, he may have an action upon the case to be repaired in damages.” Id. at 562. In addition to the elements of wrongful interference and loss, the Court required a showing of intent and lack of justification. Id. With that, the tort of intentional interference was born inMassachusetts.

3. Modern Expansion of the Tort


Out of the Walker case and its progeny developed the modern doctrine of intentional interference. The Restatement (Second) of Torts contains two formulations of this tort. The first appears in §766 of the Restatement, which provides:

“One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person, by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.”

This formulation represents the traditional version of the tort which imposes liability upon a defendant for inducing breach by a plaintiff’s promisor, such as when a defendant intentionally and without justification induces a plaintiff’s employee to breach an employment contract and come to work for that defendant. It appears that every jurisdiction except Louisiana has recognized this version of the tort of interference. 8

The second form of this tort appears in §766A of the Restatement (Second) of Torts, which provides:

“One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him.”

Comment c to this Section explains that while §766 and §766A both impose liability for interference with receiving the fruits of a contract, they differ in the means by which the interference is caused.

“Under §766, the plaintiff’s interest in obtaining performance of the contract is interfered with directly. Under this Section [§766A] the interference is indirect, in that the plaintiff is unable to obtain performance of the contract by the third person because he [the plaintiff] has been prevented from performing his part of the contract and thus from assuring himself of receiving the performance by the third person.”9

The Reporters’ Notes to §766A indicate that this “Section is new [but] was tacitly presented in §766 of the first Restatement.” “An unlawful interference with a person in the performance of his contract with a third person is as much a legal wrong as an unlawful inducement of a breach of that contract by a third person.” 10 Although the Restatement indicates this form of the tort “is now consistently recognized” (§766A, comment b), jurisdictions appear to be split on the issue.11

IV. Massachusetts’ Adoption of §766A in Shafir v. Steele

In Shafir v. Steele, 431 Mass. 365 (2000), the Supreme Judicial Court considered whether to adopt the second form of the tort of intentional interference set forth in §766A of the Restatement. At the outset, the Court rejected Steele’s argument that §766A did not reflect the law of Massachusetts. The Court noted that it had previously recognized and embraced the first form of this tort represented by §766 of the Restatement, and that “the only difference between the torts described in §766 … and §766A is that, under §766, the tortious conduct causes the third person not to perform, whereas §766A involves interference preventing the plaintiff from performing his own part of the contract.” Id. at 369. The Court could discern no principled reason not to accept both forms of this tort.

Further, relying upon Anzalone v. Massachusetts Bay Transportation Authority, 403 Mass. 119 (1998), the Court reasoned that prior precedent had already laid a foundation for adoption of this second form of the tort. The Court noted that inAnzalone it had affirmed dismissal of a complaint alleging tortious interference with the plaintiff’s own performance of his employment contract on the grounds of lack of damages since the “plaintiff was still employed and did not allege loss of any advantage.” Id. at 370.

The Court also cited with approval the Massachusetts district court decision ofBoyle v. Boston Foundation, Inc., 788 F. Supp. 627, 630 (D. Mass. 1992), wherein Judge Nelson opined that the Supreme Judicial Court would, when confronted with the issue, approve of and adopt §766A. In Boyle, the plaintiff had sued her former employer, Boston Foundation, Inc., and former supervisor, Anna Jones, claiming that Jones had “interfered with the contract between Boyle and the Boston Foundation in such a way as to prevent her (Boyle) from performing the contract or causing (Boyle’s) performance to be more burdensome.” Id. at 630. Relying on “a hint in the case of Anzalone … that intentional acts by a supervisor which caused an employee to resign would be sufficient to state a claim of intentional interference,” Judge Nelson held that Boyle’s intentional inference claim was viable underMassachusetts law. Id.


As Judge Nelson predicted, it was only a matter of time before the SJC was presented with an appropriate case in which to formally adopt §766A of the Restatement and recognize this second form of tortious interference. The elements of this new tort are:

  1. the existence of a contract between the plaintiff and a third party;
  2. actual or constructive knowledge of the contract by the defendant;
  3. intentional12 and improper13 acts by the defendant inducing the plaintiff to breach the contract with the third party or causing performance of the contract to be more expensive or burdensome; and
  4. damages suffered by the plaintiff as a direct result of the defendant’s actions.

V. Significance Of This New Tort

The Shafir case is significant not only because it recognized a new tort, but also because it has opened up several new areas of potential exposure for businesses. If the Massachusetts experience is similar to that of other states, we are likely to see the emergence of the following types of litigation premised upon §766A liability:

1. In the Context of a Breach

  1. Tortious Inducement to Breach—Richard Plattner v. State Farm Mut. Automobile Ins., 812 P.2d 1129 (Ariz. 1991) (court recognizing viability of claim by attorney against opposing party for interfering with attorney’s relationship with his client); cf. Yankee Network v. Gibbs, 295 Mass. 56 (1936) (fraudulently inducing plaintiff to break his contract).
  2. Depriving Plaintiff of Labor to Perform Contract—Pacific Typesetting Co. v. Int’l Typographical Union, 125 Wash. 273, 216 P. 358 (1923) (defendant union coerced employees to strike in order to render it impossible for plaintiff employer to complete its printing contracts with other companies); i>Lichter v. Fulcher, 22 Tenn. App. 670, 125 S.W.2d 501 (1938).
  3. Depriving Plaintiff of Materials Needed to Perform Contract—Coonis v. Rogers, 429 S.W.2d 709 (Mo. 1968) (putting sugar in gas tank of competitor’s truck to prevent its use).
  4. Harassment by Co-Workers14—Eserhut v. Seister, 52 Wn. App. 515, 762 P.2d 6 (Wash. App. 1988) (coemployees could be held liable for intentionally interfering with a business relationship); Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 733 P.2d 430 (1987) (defendant son of employer held liable to plaintiff employee who quit as a result of defendant’s harassment); Kyriazi v. Western Elec. Co., 461 F. Supp. 894 (D.N.J. 1978) (defendant employees held liable for harassment of plaintiff employee who left).
  5. Excluding Plaintiff From Place Where Contract to be Performed—Mumford v. ITT Commercial Fin. Corp., 858 P.2d 1041 (1993 Utah App.) (defendant barred plaintiff from premises and prevented him from repairing his equipment, causing him to breach his contract with a third party; court recognized viability of §766A claim); Kelly v. St. Vincent Hospital, 692 P.2d 1350 (N.M. 1984) (plaintiff doctor sued hospital for intentionally interfering with his contracts with his patients by terminating his staff privileges for failing to obtain malpractice insurance; no liability found because hospital had legitimate business need for requiring malpractice insurance and no improper means used to deny access); White v. Massee, 202 Iowa 1304, 211 N.W. 839 (1927).
  6. Impending Plaintiff’s Access Thereby Preventing Performance—Southwestern Bell Tel. Co. v. John Carlo Texas, Inc., 843 S.W.2d 470 (Tex. 1992) (defendant phone company failed to move its cables and poles for a street widening project; when contractor failed to complete project on time, it sued phone company, claiming it was cause of contractor’s breach; case remanded for new trial on issue of whether intentional failure to move cables and poles was done for the purpose of interfering with contractor’s performance of contract).

2. In the Context of a Non-Breach Where Performance Made More Burdensome or Expensive to Plaintiff

  1. Damaging Plaintiff’s Work—Piedmont Cotton Mills v. H.W. Ivey Constr. Co., 109 Ga. App. 876, 137 S.E.2nd 528 (1964) (plaintiff general contractor under contract to build office building, parking lot and bridge; defendant liable for intentionally tearing bridge down with tractor); Cue v. Breland, 78 Miss. 864, 29 So. 850 (1901) (plaintiff hired by town to maintain road for period of time; defendant intentionally damaged road, impeded drainage, etc.; basis of liability recognized); Southern Ry. Co. v. Chambers, 126 Ga. 404, 55 S.E. 37 (1906) (defendant’s conduct retarded performance of contractual duties); McNary v. Chamberlain, 34 Conn. 384, 91 Am. Dec. 732 (1867) (plaintiff hired to build bridge and maintain it for five years; defendant intentionally damaged bridge and increased plaintiff’s cost of maintenance).

Although §766A has been criticized by some as being too broad and likely to inhibit competition between businesses, Massachusetts precedent does not suggest this will be the Massachusetts experience. In short, pure, clean competition between businesses is not likely to give rise to potential exposure under a §766A theory15 . As the Massachusetts Appeals Court noted five years ago, “[f]or competition and for the rough and tumble of the world of commerce, there is tolerance, even though the fallout of that rough and tumble is damage to one of the competitors.” Melo-Tone Vending, Inc. v. Sherry, Inc., 39 Mass. App. Ct. 315, 319 (1995). This decision recognizes that it is quite appropriate to “lure a customer away from someone with whom it has been doing business by means of better product, service or prices.” Id. It is only when competition is coupled with intimidation, fraud, threats of physical harm, civil suits, or criminal prosecution, as occurred in the Shafir case, that the line between pure competition and wrongful interference is crossed. In the wake ofShafir, that line may be a costly one to cross.


The Shafir case is significant because it created a new tort and opened up several new areas of potential exposure for businesses. If the Massachusetts experience is similar to that of other states, we are likely to see the emergence of litigation predicated upon a variety of different §766A fact patterns.

1. Steele’s editorial stated: “We don’t know why [Shafir] … bought the Advocate Building … [I]n any case, the freedom of this newspaper is not for sale—at any price.” 431 Mass. at 367 n.4 (omissions in original).

2. Id. at 367-368. Shafir’s attorney sent a letter to Shawmut which outlined the harassment and intimidation by Steele and indicated that if Shafir closed the deal with Shawmut she “believed she would be facing litigation, harassment in the newspaper, and a tenant (i.e., the defendant [Steele]) who was unlikely to leave willingly or to pay any rent.” Id. at 368 n.5. Shafir requested Shawmut return her $10,000 deposit, which it declined to do.

3. The Ordinance of Labourers, 23 Edw. III (1349).

4. 3 Bl. Com. 142.

5. 2 El. & Bl. 216, 118 Eng. Rep. 749 (1853).

6. Dan B. Dobbs, The Law of Torts §447, at 1264 (2000).

7. Restatement (Second) of Torts §776, comment c at 8.

8. See Lagarde v. Allstate Ins. Co., 515 So.2d 1147 (La.App. 1987).

9. Restatement (Second) of Torts §766A, comment c at 18.

10. Morris v. Blume, 55 N.Y. S.2d 196, 199 (1945), aff’d mem. 269 A.D. 832, 56 N.Y.S.2d 414.

11. See Dobbs, supra, at §448, at 1269-1270 (collecting cases).

12. The “intent” necessary for this tort is defined in §8A of the Restatement (Second) of Torts. Interference is intentional “if the actor desires to bring it about or if he knows that the interference is certain or substantially certain to occur as a result of his action.” §766A, comment e.

13. “The factors to be considered in determining whether an interference is improper are stated in §767.” §766A, comment e. The issue of impropriety can be very fact-intensive. Under the Restatement, impropriety turns on the nature of the defendant’s conduct, his motives, the proximity of his actions to the harm, and his relationship to the plaintiff. Restatement (Second) of Torts §776(a), (b), (f), (g).

14. Caveat: Massachusetts has recognized a supervisor’s privilege from claims of intentional interference where the supervisor’s conduct is related to the supervisor’s employment and not motivated by personal malice. See Benson v. Norwood Dodge Sales, Inc., 12 Mass. L. Rptr. No. 6 (Oct. 23, 2000) (Brady, J.) for the most recentMassachusetts case discussing this privilege.

15. On this point, the SJC made the following observation in 1871: “Everyone has a right to enjoy the fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, disturbance or annoyance. If disturbance or loss come as result of competition, [it is not actionable]. But if it come from the merely wanton or malicious acts of others, without the justification of competition or the service of any interest or lawful purpose, it then stands upon a different footing, and falls within the principle of the authorities first referred to.”Walker v. Cronin, 107 Mass. at 564.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require and further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative.


Wisconsin Supreme Court upholds law allowing hearsay at preliminary exams in criminal cases

Thursday, July 10th, 2014

By Bruce Vielmetti of the Journal Sentinel
July 9, 2014

The Wisconsin Supreme Court on Wednesday upheld the state’s 2012 law allowing hearsay at preliminary examinations in criminal cases.

Three defendants had had challenged the practice, contending that it violated their Sixth Amendment rights to confront witnesses against them, but the high court, in a 6-1 decision, ruled that because of the very limited scope of the preliminary hearing, the constitutional right does not attach. The decision affirmed a 2013 Court of Appeals ruling.

At preliminary examinations, prosecutors must establish only that there is probable cause that the defendant committed a felony. The hearing is not constitutionally guaranteed, but provided only by statute.

Hearsay is testimony from a witness about what another witness said, offered for the truth of the statement. It is generally prohibited in court proceedings because it is considered less reliable.

The ruling also notes that the law does not allow prosecutors to introduce any and all hearsay at preliminary exams.

“Circuit courts remain the evidentiary gatekeepers,” Justice Ann Bradley Walsh wrote for the majority. “They must still consider, on a case-by-case basis, the reliability of the State’s hearsay evidence in determining whether it is admissible and assessing whether the State has made a plausible showing of probable cause.”

Prosecutors say allowing hearsay saves victims from the stress of testifying, and saves time and moneyby reducing the number of witnesses needed to show enough evidence of a crime to convince a judge to order a defendant to stand trial.

Now, a single police officer could assert the summary of evidence in a case at the preliminary hearing. In the cases on appeal, officers testified about what child victims of abuse told them or other investigators.

Attorney General J.B. Van Hollen advocated for completely eliminating preliminary hearings.

Defense attorneys warned against the change, saying the preliminary hearing helps winnow out weak cases and prompt plea bargaining when the state’s evidence and key witnesses appear strong.

In the challenge rejected Wednesday, the defendants argued the use of hearsay at their preliminary examinations violated not only their right to face accusers, but interfered with their rights to effective assistance of counsel and right to due process.

In her dissent, Chief Justice Shirley Abrahamson said the majority goes too far, and that the new law should be “harmonized” with older law giving defendants more rights at preliminary exams.

“If preliminary examinations are to serve as effective roadblocks to frivolous and fraudulent prosecutions, and if they are truly to be a “critical stage” of trial,” Abrahamson said, “the preliminary examination cannot be reduced to a farce, in which a defendant has no ability to challenge or rebut the narrative advanced by the State’s proffered double and triple hearsay testimony.”