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Apologize for not posting for several days, but I was laid low by the flu. I am cautiously optimistic I am on the road to recovery and will try to get back in the swing of things.

There have been some legal developments of note over the last week or so, but I won't get to all of them tonite. One thing that did catch my eye is the decision by Federal Judge Norgle last week to dismiss the class action suit by descendants of slaves for reparations from 19 blue chip companies. The Judge noted that the complaint primarily failed because the plaintiffs were attempting to bring the claims nearly a century after the end of the Civil War and the formal abolition of slavery. He also noted that there the plaintiffs have failed to show any personal stake in the outcome of the litigation. In response, the plaintiffs contend that due to slavery they have shorter life expectancies and are more likely to be jailed or murdered. Judge Norgle permitted the plaintiffs leave to file an amended complaint, but I don't see how the remedy the defects pointed out by the Court.

In silly, but interesting legal news...

Business 2.0 Magazine recently compiled their annual "101 Dumbest Moments in Business" list. I will post several of the listings in the days to come, but I had to post this one.

A Dairy Queen employee in Richmond Virginia apparently took a liking to a female customer. He walked over to her booth, pulled down her sweater and bit her on the breast. Yes, bit her on the breast. He then announced, and I quote "I am like Dracula". Perhaps a bit more like Dracula's idiot stepbrother. Particularly astounding is the fact that this moron had attacked a female employee six months earlier and DQ had done nothing about it. The woman sued and the jury awarded her $700,000. The article in the Mag had a nice little still photo from an old Dracula movie where Dracula was about to munch on some young maiden. Close inspection reveals Dracula wearing a DQ paper hat.

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Here's an interesting tidbit recently reported in the Chicago Tribune. On Wednesday, January 21, 2004, a federal jury in Chicago awarded $500,000 to a former local government employee who claimed that she was being sexually harassed by her boss. Well that hardly seems newsworthy you might say. After all, sexual harassment by superiors is hardly unusual. But there's an interesting twist in this case. The individual who was doing the alleged harassing was, at that time, responsible for investigating...can you guess? Yep, he was the chief investigator or sexual harassment claims. Boy, talk about ironic, huh?

In any event, the jury awarded $400,000 in punitive damages and $100,000 in compensatory damages. The defendant vehemently denied the harassment and the plaintiff's mother(who also worked for him, insert your own joke here)denied she had ever seen anything improper. In addition, the defendant testified that although mom was much more productive than her daughter, he fired mom and retained daughter. Hey, I know what you are thinking. Why would you keep the bad employee and fire the good one? Not so fast. The defendant had an answer ...he testified he didn't have the heart to fire a single mom. What a guy.

The plaintiff testified that after she rejected sexual advances, her work duties were minimized and ultimately she was cleaning the fax machine and shredding paper. Well that makes perfect sense. Remember, she wasn't very productive. Her mom was the dynamo. But wait, they fired mom. Wow. Lawsuits sure are confusing sometimes.

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Approached today by a business consultant who thinks he got screwed out of a rather large fee by a big conglomerate here in the midwest. My client signed a deal with the defendant whereby he agreed to secure millions of dollars of financing for the company - in exchange for a monthly fee and a small % of the financing if and when it went through. The agreement provides that my client is to use his best efforts to get the financing and more importantly a tail clause. In effect, the tail clause basically says, "Hey, I have approached ABC Bank about giving you financing. I have given them docs and pitched your company to them. If you fire me and they go ahead and provide the financing up to 12 months after my firing, I still get paid". The big conglomerate says sure, no problem, we can live with that and signs off on it. So my client romances this Houston Bank about the financing. Sends them documents about the conglomerate, pitching them to the bank. Then, suddenly, my client is mysteriously fired. And then all kinds of weird "coincidences" start to occur. First, the conglomerate suddenly manages to get some financing. Millions of dollars of financing. And they get the financing shortly after they fire my client. And in an extraordinary coincidence, happen to get it from the Houston bank my client had been romancing for the money. Now isn't that an odd series of events. And the kicker? By firing my client, the conglomerate thinks they don't have to pay any fee for using one of his sources. But they forgot about the 12 month clause in the contract. So I agreed to represent this guy and go after his fee, which is well into the six figures. The defense here will essentially be hey, we lined this up ourselves, with no help from your guy. But the fact the money came from a source my client had previously approached combined with the odd timing of it all suggests that somebody was trying to pull a fast one. I will be filing the lawsuit in the next couple of weeks. This should be an interesting case. I'll report on it as things unfold.

Interesting article about our noble attorney general in this month's Vanity Fair. Has "voluntary" prayer meetings in his office every day at the Justice Department. It has been nearly 20 years since I got out of law school, but I think that whole separation of church and state thing is still part and parcel of our government. I'll have to check. Maybe they got rid of that one day when I was napping.

Finally, a quick celebrity note. Seems Courtney Love is being sued by a law firm for neglecting to pay some $200,000 in legal fees. And she seemed like such a responsible gal...

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Congratulations to John Edwards for roaring to a second place finish in Iowa. And people say trial lawyers aren't lovable.

Filing a case tomorrow for a young kid who got injured. My client is a 12 year old kid living in a rural northern Illinois county. Near his house is an empty lot where local kids congregate. There are well-worn bike paths and foot paths on the lot and kids use it as a short-cut to a local convenience store. Some indication that older kids were building bike "jumps" on the path by strategic placement of logs. And other rumors that neighbors had circulated at least one petition to have the area fenced because of worries about kids getting hurt.

My client had been there one other time before he got hurt. He and a buddy are riding bikes one day and decide to go to the convenience store. My guy is riding over the path when he suddenly realizes that there is a group of logs stuck in the path. He flips, falls, and lands on his hip, suffering a severe fracture. Ultimately has a lot of hardware put in the hip. His activities will likely be greatly curtailed for the rest of his life.

So, does he have a case? Some of my colleagues have suggested he was a trespasser and deserves what he got. Thankfully in Illinois there is something called the "attractive nuisance" doctrine, where under certain conditions, landowners are liable for dangerous conditions on their property when they know children frequent the property and the owner knows or should know about the dangerous condition. Insurance companies really fight these cases, so I anticipate a number of Motions to Dismiss. I will report further as the case evolves.

Quick celebrity note: McDonald's announced that their contract with Kobe Bryant has expired and it won't be renewed. Yeah, those rape allegations probably never even entered their mind.

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I am going back and forth deciding if I want to take on some matters for an old client. He runs a local repair facility. Not long ago he was sued by a client who was alleging that his garage didn't do certain repairs on her car and actually damaged it. The firm representing the plaintiff routinely files these cases, even though the actual damages are tiny[like they were in my case]. They take these cases because under the relevant statute, if they prevail, they can get attorney fees, and, in the appropriate circumstances, punitive damages. So they run up their fees and ask for punitive damages. So I agree to defend this guy and the case ultimately goes to trial. The plaintiff's attorney, although full of bluster did a pretty poor job. And his client was worse. She was just making things when she testified - and the jury knew it. They asked for some $80,000 in damages(mostly punitive). The jury returned a "not guilty" verdict for my client in 30 minutes. He is absolutely thrilled. Raves about me, what a great guy I am, what a great lawyer, etc., etc., etc. You get the picture. He is really happy. Only problem? Getting paid. That case has been over for well over a year now and I am still owed money. And I have handled a couple of matters for him in the interim and gotten good results. And again, slow pay. I had another case dismissed against him about 8 months ago and still haven't been paid. Now he's got a couple more things he wants me to handle. And I told him I had to be paid on the outstanding bills. He actually sounded taken aback that I was bitching about the bills. One of the new matters is tiny - but he wants to fight it on "principle". Famous last words. Loosely translated that means "You waste a bunch of time on this silly case, pursuant to my instructions, and then when I get your bill, I'll complain about it" or something like that. I genuinely like this guy, real salt of the earth type. But I don't see the wisdom in taking on new matters when he doesn't want to pay on the old cases. Against my better judgment I'll probably handle these other cases - and hope he finds his checkbook before I retire in 30 years or so.

Contact me at markploftus@aol.com

Interesting article in the Chjcago Sun-Times about the settlement of a lawsuit involving a local politician and the Town of Cicero(where Al Capone used to run things). Back in 2000, Joseph Moreno, a Cook County Commissioner, had decided to run for Town President of Cicero against Betty Loren Maltese, the Republican incumbent. Moreno attended an event in Cicero one night and was driving home when he was pulled over by the Cicero Police and arrested for drunk driving(in the midst of the campaign). Moreno claimed that the arrest was a dirty trick orchestrated by his opponent. And oddly enough, prosecutors dropped the charges citing a lack of evidence. Moreno lost the election but filed a Civil Rights action against Cicero and the officers involved in the arrest. His civil case got considerably better when one of the arresting officers admitted he had been part of a plot to set up Moreno. [And that officer also has a lawsuit pending against Cicero, claiming that town officials threatened his job after he cooperated with the FBI probe into the Moreno's arrest]. Oh, and another fact that probably helped the plaintiff's case - Betty Loren Maltese, the victor in the 2000 election? Currently sitting in prison for convictions on some corruption charges. Although there is apparently a confidentiality agreement, Moreno's settlement is supposed to be between $400,00 to $500,000. The Town of Cicero however, continues to insist it did nothing wrong. Right. Let's think about this for a moment...

1) Prosecutors drop the DUI charges, saying there is on evidence;
2) The arresting officer admits to a plot;
3) Moreno's opponent, if she is to testify in the civil case, would do so wearing that bright orange prison suit. Yeah, I think this is a case you might want to settle.

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Couple of interesting celebrity trials getting under way. First, Jayson Williams, former NBA rebounding champ is on trial in New Jersey for manslaughter. His trial is just getting under way. You might remember that Williams is apparently a gun fanatic and one night his driver ended up dead after being shot by Williams. The defense apparently is arguing that Williams was just playing around and didn't mean to shoot the poor guy. Williams is apparently admitting he pointed the gun at the guy. In addition, the prosecution apparently has evidence that Williams either directly or indirectly attempted to place the victim's fingers on the gun in order to suggest it was a suicide. Those are known as bad facts Jayson. Will report further as the trial progresses.

In addition, Martha Stewart's is fighting back via the Web. According to an MSNBC report, she will be posting daily reports from her criminal trial [including some transcripts]to a website. I haven't heard or seen this particular tactic before - and arguably it poses some problems if anyone, including jurors, can get on the website and read her thoughts. I suppose she is allowed to do this under the First Amendment, but the trial judge may impose certain restrictions. I'll keep an eye on this and report in later posts.

Contact me at markploftus@aol.com

One of the nice things about running your own practice is the options it gives you when it comes to taking clients. At a big firm, some stuffed shirt marches in, assigns you some client and you have to do the work - even if the client is crazy, slimy or both. Thankfully I can pick and choose my clients. And sometimes there are little hints that you really don't want to represent the person sitting across the table from you. The following is a little list I put together that helps me decide if I want to take a case or client.

TEN REASONS NOT TO TAKE A CASE

10. You ain't the first stop buster. If three or four of your brethren have turned down a case it probably hasn't improved with age.

9. To fight for principle. When your client says the money "isn't important" take a long, long look. To Kill A Mockingbird is one of my favorite movies, but principle won't feed your family.

8. To do that friend/relative/ex-girlfriend a favor. Big mistake. These cases never get resolved quickly and you probably won't get paid. Next time they want a favor, cut their lawn[if however, the ex-girlfriend dumped you, don't bother].

7. Cause you don't want to join a committee. When your client tells you that a friend/therapist/paralegal/probation officer/psychic or whoever will be reviewing your work, cut them loose. First, by telling you, they are admitting that they don't have much confidence in you. Secondly, the mope that your client wants to drag into the equation[who is never a lawyer]will never agree with anything you do. Send the entire committtee packing.

6. The case they want you to take sucks. Oh yeah, this one is important. Should probably be higher on the list.

5. Your client has goofy expectations. Your client turned down medical assistance at the scene. She elected not to get any medical treatment for months. When she did get treatment, it amounted to two office visits. But she reads the newspaper and she is entitled to "six figures". Maybe on Mars, where she is from, but not here on earth. Refer her to that guy who raised his hand at the end of class in law school.

4. The referral source stinks. The guy who runs the practice over the Subway? The one who has been suspended from the practice of law... twice? Yeah, that one. Those cases he wants you to take? Under no circumstances should you take them. Unless of course you want to create a niche practice - specializing in the representation of intoxicated persons who fall and hit their heads on their bathtubs.

3. It comes in on the eve of trial. You get a call from a lawyer who heard you are looking for work. He's got a case coming up for trial and he can't try it. He will graciously cut you on half the fee if you try it and win. Whadda think? I think not. You will learn that there are a couple of things missing. Like evidence. Yeah, you don't stand a snowball's chance in hell of winning. Oh, and the depositions you'll need? Never taken. And the trial subpoenas? What trial subpoeanas??? That case is a mess and you'll keep some of the stink if you try it. Thank him for his kindness and don't answer next time he calls.

2. You can't do it. It's okay. Admit it. You just don't remember the maritime stuff you learned in law school. Should probably refer that "high seas" case to someone who does.

1. Your client is batshit crazy. Self-explanatory.

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Will be spending several hours tomorrow responding to a silly motion in a retaliatory discharge case. In Illinois, an employer cannot fire an employee when that employee exercises his right under the Workers' Comp Act, i.e. files a claim when hurt at work. My client was injured while working, and ultimately had to have surgery on his back. The client is a nice, older man who isn't educated. His employer, fired him not long after the injury(but before he filed his claim). I filed suit for him and his employer is moving to dismiss the case, saying that they fired him before his Worker's Comp petition was on file, so, they weren't doing anything in retaliation. Thankfully, the Courts of Illinois have addressed this issue countless times. And the employer's argument just doesn't cut it. In my case, the employee had advised them he would be pursuing his Worker's Comp rights for his injury. The employer was well aware of his plans. And previous decisions have made it quite clear that there is no requirement that the petition be on file before one can proceed with a retaliatory claim. If that was the case, every employer would just fire the employee the day they got hurt and hire someone to take his place. Thankfully, the Courts of Illinois have recognized that employers somtimes jerk their employees around before they actually file a claim, in an effort to "persuade" them not to file. So there is no requirement that the claim be on file. The motion should be denied, and I anticipate it will be by the judge. I will report in a future post.

Celebrity Justice News...

Apparently Gary Condit, the former congressman who was reputedly linked to Shandra Levy, has filed a libel action against some of Tabloid papers for certain reports they made as that drama unfolded. His lawsuit apparently asked for many millions of dollars in damages. The Tabloids have promised to vigorously defend the case. Condit may ultimately come to regret this lawsuit. The Tabloids have promised a vigorous defense. One of the defenses in these types of cases is proving the truth of the allegations. And that can sometimes result in revelations the plaintiff may not want to be made public. I check up on how that is unfolding and report.

Contact me at markploftus@aol.com

It's good to be back, even under another name. My previous blog was entitled "Trials and Tribulations" but due to technical difficulties, I don't want to go into, I had to create another blog.

Updates on Cases...

Most significant update is the settlement of a medical malpractice case. This was the case where the doctor became aware of a deadly condition in the client(abdominal aneurysms)but apparently elected not to disclose them to the patient(isn't the patient the only person he should be sure to tell???) In any event, the carrier finally put some money on the table and the case was settled in late December. That made for a merrier Christmas.

Getting involved in another mold case/bad faith case against an insurance company. Seems the plaintiffs had a bad water intrusion into their property in 1997 and the carrier, typically, said they "would take care of everything". Well they didn't. They didn't properly clean the property and now their is toxic mold all over the house. There may be some procedural problems in the case however...will have to wait and see.

Agreed to represent another guy whose employer didn't like the fact that he filed a worker's comp claim(i.e. got injured at work and wanted to recover). So they fired him. The employer was apparently offended this guy had the nerve to get hurt on the job. The client is a real nice guy, salt of the earth. Will file his retaliatory discharge case in a couple of weeks.

Celebrity justice news...

Scott Petersen's case was moved from Modesto. I think the judge did the right thing. I don't think he could have gotten a fair trial there. To qoute Geragos, his attorney, "Oh sure, he can get a fair trial here...then we'll take him out and hang him." He's probably better off in Los Angeles, where juries do wacky things in criminal cases, like O.J. for example.

And they are picking a jury in Martha Stewart's case. Will probably take several weeks to get the jury in place. No predictions yet about how this one will turn out.

That's it for now. Will make a sincere effort to post more regularly - don't want to disappear from the Blog list again.