The case of Estate of Caulie Jackson Murray, Sr. v. Delta Health Group, Inc. and P. Carolyn Antone involves the question of what statements an expert can make before a jury (for the purposes of this review, consider “treating physicians” as experts).  The Second District Panel (Morris, Northcutt, and Villanti) held that the defendant could not introduce testimony by a treating physician that the facility was “not negligent” because that specific testimony applies a legal standard.

The Panel likewise appears to indicate that a treating physician’s (or anyone’s) testimony about whether something “violated a resident’s rights” may also be excluded as invading the province of the jury.

Instead, the court suggests that treating physicians should be listed/disclosed as “experts” when they are offering opinions based upon their training and experience AND that the magic words involve whether the physician feels there was a “violation of the standard of care.”  As the court pointed out, “the distinction is to some degree a matter of semantics but that it is a necessary distinction nonetheless.”

Gun enthusiasts and opponents will likely find the actual pleadings and legal arguments less than exciting since the debate circles around whether the Privileges and Immunities (P&I) Clause of the U.S. Constitution applies, wholesale or selectively, to the Bill of Rights (P&I is the “comity” clause which says states cannot discriminate against citizens of other states when it comes to civil rights).

The 7th Circuit declined to apply the P&I clause since prior SCOTUS cases dating back to the late 1800’s (!) indicate otherwise, although the reason in those cases has since been “undermined.”

There’s more in the 7th Circuit decision about constitutional debates, stare decisis vs. whether cases can be “bypassed as fossils,” and other academic legal wranglings which likely will not stir the interest that the public gun debate, uh, musters.

For those interested in the pleadings (including over 30 amici briefs from groups as varied as Jews for the Preservation of Firearms and the Safari Club), visit the ChicagoGunCase.com website.

If you are interested in scouring the 2008 D.C. gun case, District of Columbia v. Heller, for clues (it cites the 1800 cases in a footnote) or you are interested in seeing the procedural history of the Chicago case in the context of other post-Heller cases, Wikipedia has some fairly good coverage.

The prevailing media opinion is that the SCOTUS will apply the Second Amendment to the states and municipalities but may leave in place the right to regulate.  I’m guessing that the Court will save this opinion for the end of their term, since they often like to drop “big” decisions and then hightail it out of D.C. for the summer.

In Robert Hogan v. Gray Gable, Nassau Village Volunteer Fire Dept, Inc. (First District: Wetherell, Lewis and Thomas), the plaintiff lacerated his hand on metal mesh while entering a dunk tank at a charity event.  The tank-owner claimed that there were no prior incidents with the tank going back to its original construction in 1990 and sought to admit the same.

Plaintiff argued that there was evidence of modification in 2000-2002 (including the mesh) and that the Defendant could not establish it was the same equipment under the same circumstances (e.g., used at night under same lighting conditions) going back to 1990.

A trial judge’s decision to admit evidence of occurrence or nonoccurrence of prior accidents under substantially similar conditions is within the sound discretion of the trial court.  It must be the “same type of equipment” under “substantially similar conditions.”  Interestingly, if the item is not modified/changed, one case suggests that a google manufacturer did not have to establish “substantially similar use.”

Herein, the evidence of modification required strict compliance with both parts of the test.

A new Internet trend is afoot and savvy lawyers may want to at least be aware of the new media.  No, it’s not Google Buzz, which both the Wall Street Journal and CNET recently panned here and here.

Foursquare and Yelp are similar social networking systems which integrate, rather than replace, Facebook and Twitter into a person’s real world social life (indeed, that’s how they overcome the hurdle of creating a new Internet space, which is Google Buzz’s hurdle).  Both are apps which are used on a person’s smartphone (iPhone, BB, and Android).

Yelp began and remains a solid restaurant/bar/hotel finding app to be used on the go via the smartphone.  You can get names of places near you and read quick reviews.  A small community has developed, especially now that users can “check in” when they arrive — letting friends (real and internet-y) know where they are AND giving the business owner a chance to offer specials just for Yelp users.  You can even post the fact you’ve “checked in” to a certain place go to Facebook or Twitter.

Over the weekend, I saw a Yelp sticker at a business and, when I fired up the iPhone app, it beamed me a 10% off coupon while I was in line to pay.

Foursquare is a similar — if not better —  concept which, in their words, is “a cross between a friend-finder, a social city-guide and a game that rewards you for doing interesting things.”  Each time you check in to a place, you receive points.  If its a new place, you get more points.  As you check in to different types of places, you get badges.  As you drop Twitter-like “tips” about a restaurant, business or place, it will reward you with more points and even badges — if you are familiar with Xbox Achievement Points, you’ll realize this is a Barnum-like tool which does, indeed, drive participation.

Foursquare also lets you check-in and share via Twitter and Facebook; businesses likewise can reward you with specials for checking in.  If you are the person who “checks in” the most at a particular location, you will become the “Mayor” of that place.  In short, Foursquare takes Yelp and incentivizes it with a game.

Why should lawyers care?

One, if you are interested in a person’s activities, this provides their personal experiences, a timeline, and some of their commentary about their day.  For a personal injury plaintiff, this might amount to  jaw-dropping disclosures since Foursquare amounts to a breadcrumb trail mixed with a Twitter-like diary of the person’s day.

Second, on the business side, it may be interesting to ferret out defamation; determine whether there were witnesses to a particular event; find out how often someone have visited the location; or it may help locate potentially favorable witnesses who frequent the establishment.

Third, lawyers may  want to use these services to market their practice.  While clients may be hesitant to publicly “check in” that they have gone to their lawyer’s office (much less be the “Mayor”), it does list your business on the Yelp and Foursquare maps when users are looking around to see what “locations” are near them when they are playing with the app.  There’s even room for comments/tips.

The Florida Supreme Court and Bar, on the other hand, are still working on Internet advertising regulations for Florida lawyers which they have been kicking around since the pre-Twitter era.  FINRA, which handles brokers on a national scale, has repeatedly addressed Internet and social networking issues — touching upon record keeping, advertising, and book/record requirements, according to their press release.  Conversely, the Bar has not been user-friendly in getting a clear explanation into the hands of lawyers.

In August 2008, Judge Dempsey won by nearly 60% of the votes.

We could not find the YouTube video with the title “re-elect” but we did find this election ad.  At least one website suggested that the video title was written by the judge’s campaign manager without her knowledge.  Another website suggests that “re-elect” is an appropriate term under election laws.  However, the YouTube ad coyly mentions “18 years” in an incomplete sentence while the remainder of the advertisement focuses on “experience” — even challenging others for how they “talk” about experience.

This article points out that, in 2008, the judge had 14 years of experience NOT 20 years or even the “18 years” mentioned in the video.  Looking at Judge Dempsey’s attorney profile, she graduated from law school in 1993.  Presumably, that means she entered law school in 1990 right after college.  Is she is calculating “18 years” beginning the moment she stepped in law school?  Given that the voiceover simply says the words, “18 years,” with nothing more, the viewer may be left to assume she’s been a member of the Florida Bar for 18 years.

While on the topic of peering into a candidate’s questioned resume, one might wonder if there is a gap of time between her 1993 graduation and 1994 bar admission.  Also unclear is how she lists her work as an assistant state attorney beginning in March 1994 when she was not admitted to practice until May 2, 1994.

The Supreme Court did not specifically indicate if a campaigning judge could pack in time during law school as legal experience.

By way of background, the Florida Supreme Court’s current statement on taxable costs come from In Re Amendments to Uniform Guidelines for Taxation of Costs.

In Landmark of Winter Park, the court denied the following costs as “overhead”: postage, envelopes, copying, online research, fax charges, overtime for paralegals, after-hours heat and AC, mileage, meals, and long distance charges.

Permitted were costs such as court reporter fee for all depositions (not just those used at trial) and charges for photocopies of trial exhibits.

A 15-year associate plotted his move from a law firm to solo practice and reportedly (1) removed and copied at least one client filed, (2) kept client files with him and returned the files with some documents missing, and (3) knew of his girlfriend and former paralegal “hacking into the firm’s system to obscure client contact information.

The case went to trial and resulted in a $1.47 million judgment based upon a civil theft claim.  The appellate court acknowledged that the plaintiff law firm had successfully proven civil theft — but not causation.  In short, the copying of the file; the holding of the files; the missing documents; and the hacking were never proven to proximately cause the loss of the clients.

UPDATED || The Florida Bar reports that all of these lawyers above possess active Florida law licenses.

A marketing person (or even an astute college student) could likely develop and monitor Twitter feeds and a Facebook fan page.  But is that enough?

Developing a social media policy and handling questions about “new” issues (tech, advertising, responses to comments) is a task probably for a lawyer.

For businesses looking to enter the Social Networking sphere, I would recommend a Twitter feed, Facebook fan page, and an announcement on their own webpage (media release is optional).  I would further recommend setting up an automatic Google search for your business name appearing on the Internet as well as routine searches/monitoring of Twitter and Facebook.  Finally, you need a clear social media policy.

This is actually a fairly good task for a lawyer and paralegal working with the client.  The client could develop the content and have the law firm handle the updating and monitoring.  With a cost-effective paralegal on the front line with some concise supervision by counsel, this would be cost effective.  Moreover, it would ensure (a) the corporation has a social media policy, (b) the posts and entries are appropriate and not patently violating policy or laws, and (c) major social networking sites are monitored for defamation, copyright, unfair competition and other issues.

Depending upon the frequency of the posting/monitoring, this likely could be accomplished for a few hundred dollars a month.  A lot of PR firms could run up that tab in a week.  In good hands, this could be transitioned back to the company full time after 6-12 months.

Meanwhile, follow Clorox on Twitter to see how they are doing.  Some basic good advice on cleaning up your Twitter service is here.  Email if you have comments, experiences or questions about lawyers providing social media services.  I’m interested to see who else out there is providing that service.

On the other hand, if offensive words… well, offend you, then stop reading here.  If our federal court can brave their use and memorialize them in the F.3d, we’ll include them on this vaporous little blog.  Using the visceral terms provokes thought as to whether words alone can create a hostile environment while  phrases like “gender specific derogatory comments” or words like “scatological” tend to dull the mind.

The court held that evidence of gender-specific derogatory comments made about women on account of their gender (e.g., bitch, whore and variations thereof) could create an actionable hostile work environment under Title VII.

On the other hand, “general, indescriminate vulgarities” (e.g., fucking [noun], asshole, and, “the intensely offensive ‘Jesus fucking Christ’”) apparently do not trigger the gender-related protections of Title VII.  We question whether that last one might trigger a claim on the basis of religion.

The critical mass of the case was that the gender-specific derogatory comments do NOT have to be directed at the plaintiff.  Simply, where the environment existed and, upon receiving complaints, management did not respond, there was a jury question whether that satisfied the “intent” element of a hostile work environment.

Two factual aspects are worth noting:

One, contrary to what one might expect, the Plaintiff was a former merchant marine and “no stranger to the course language endemic to the transportation industry.”

Two, part of the hostile environment was the fact that employees played a raunchy morning radio program in the office.  It is interesting that what is permissible under FCC standards (presuming it is terrestrial and not satellite radio) could create an actionable hostile work environment…

Thanks to Law.com for their twitter post and article, “Sex Specific Profanity Could Win Discrimination Case.”