MySpace and the Federal Rules of Evidence

Ok, so I have a MySpace account, and most of my listed friends are people that I've met in person, though scattered across the globe. Chances are that I won't be adding anything to my profile that I have to worry about becoming evidence in a legal case. Can information from MySpace even be admitted into court?

A First Monday article, MySpace on the record: The admissibility of social website content under the Federal Rules of Evidence, asks that very question, and also looks at other sites such as Craigslist, personal blogs, and eBay.

The article sets up some hypothetical fact patterns, and examines some similar real life events, in asking whether or not certain information written on the web can be used in a couple of different criminal prosecutions and a products liability case.

It looks in detail at the authentication of that evidence, the application of the hearsay rule, and the best evidence rule. It then applies those rules to the fact patterns created. Nice article.

Rogue Accountant Finally Stopped

For years now, accountant Ralph V. Estep has been stepping over the boundries of propriety by practicing law without a license, as shown by the recent Supreme Court decision. He has been "representing" clients in the preparation of wills and the probate of estates.

For the protection of those persons who Mr. Estep has led astray, the Court of Chancery has appointed Peter S. Gordon, Esquire as receiver of these cases. Peter's number is (302) 652-2900. This was also reported by the Wilmington News Journal.

A receiver is: a person (usually appointed by a court of law) who liquidates assets or preserves them for the benefit of affected parties. (from: www.freedictionary.com )

real world fiscal irresponsibility

As I went through this morning's News Journal, I came across three related stories. Not related by an article in the Journal, but related by a concept... fiscal irresponsibility:

State Police fail to track sex offenders. While Colonel Thomas Macleish was correct in his statement that "It's [his] responsibility", the root cause of the problem was the fiscal irresponsibility of the executive and legislative branches to fund a law they passed. While they are quick to respond to the fickle public's hue and cry to address an issue, they fail when it comes to the part about putting the money where their law is. It's all well and good to say that the State Police are to perform certain additional tasks, but the cold reality of it is that it means that we actually have to pay an employee to do it. The State government falls down on this reality check in many many places, every single day.

Public Defenders urged to draw the line. The Delaware Public Defenders and contract (conflict) attorneys have been advised that, from an ethics perspective they should refuse to accept cases when to accept the cases would overburden their case load and diminish their ability to provide adequate legal representation. I salute Monroe Freedman for this advice. Here again, the State government has been ducking and covering the real fiscal issues for as long as I can remember, and I am sure a lot longer than that. I have written several times about how appointed counsel for the patients at the Delaware Psychiatric Center are drastically under paid for the hours that it takes them to provide adequate legal representation. I'm not talking dream team here, I'm talking just the basics. I have personally seen these problems throughout our government. After many attempts to correct these problems from the inside, I came to the conclusion that for an attorney to continue to function under an under-funded situation that prevents him or her from providing adequate legal counsel to the clients, is to be an enabler for the fiscal irresponsibility in the government. And that, in and of itself is irresponsible and unethical.

We are still hearing reverberations from the fiscal irresponsibility of the Christina School District. And I deplore what they have done. But again, there is a fundamental root problem that is worse yet. Why is it that we have dozens upon dozens of school administrative positions, all paid well into the 6 figures (and with additional multi-thousand dollar automobile reimbursement contract benefits) when other states can do just as bad of a job with just one administrator (for a school population size comparable to Delaware). We are being irresponsible by allowing these administrative leeches to suck the life out of our childrens' education system. We don't need more than three school districts in this State... and that's stretching it. We could get away with only one district. But instead, we are paying many millions of dollars every year to fund dozens of duplicate administrative districts. And look at the ethics of the people who we are paying these millions of dollars to... today's News journal article is about the Newark High School principal and how he is a finalist for a job in Alabama. Didn't I read recently that he said he isn't going anywhere? That was when a story broke about him being considered for a Maryland job. Oh my! He must be such a leader in the educational field that schools across the country are beating down his door... without him applying. Does he think we are ignorant? I suppose from a school administrator's position we must be. We are ignorant to pay so much for so little.

Error on Newark Penalty Corrected... Oh Really?

My Opinion -

Today's News Journal Local section says that the error has been corrected. This refers to the huge jury award against the City of Newark this week in Federal Court.

It seems that the City was ordered to pay the aggrieved party's attorneys fees ($1.7 Million), and that in the math, the amount was counted twice. Well, that's understandable. I can understand it because the amount of the rest of the award was so large as to minimize the impact of the double counting of the attorney fees. It is good that it was promply corrected today.

I think we should look however at what was really the error. The bigger error. The one that is in the neighborhood of $36 Million Dollars. I think we should know what caused that error, and fix it.

And the multi-million dollar error that Newark made regarding the adjustment of power charges. Who's going to fix that? Do the people even know about it? I know that I would like to understand it better.

What I am crystal clear on however, is that the City's leadership by Mayor Vance Funk has been disappointing, arbitrary and capricious.

For example, the Mayor recommended that the way to deal with the growing Alderman Court caseload was to ignore the growth issue and recommend formally that the Alderman's salary be cut so as to provide for more compensation for the Deputy Alderman. The Mayor said... on the record... that there was nothing that the judge of Alderman's Court could tell him that he didn't already know. While it is true that Mayor Funk was Alderman thirty some years ago, it is also true that some things have changed since then. Further, the Mayor at that meeting spoke of the arrangement that had been made upon the hiring of the Alderman. Well guess what? He wasn't there. He wasn't Mayor then. He didn't know. He was imprinting upon the present day what he wanted to remember from thirty years ago.

But instead of acknowledging the changes and working with council and the judiciary towards the development of a plan to deal with the growth of the Court and the City, the Mayor preferred cheap political rhetoric.

Such has been the Mayor's practice since he has taken office. And his cavalier and demeaning comments of this nature have been generally demoralizing to the dedicated City employees. Myself included.

After hearing of the meeting regarding the Alderman's Court discussion, I immediately resigned from the position of Deputy Alderman in protest to the manner in which my dedicated professional colleague was treated.

The Alderman had appeared to discuss the matter in private with council, only to find that he had not been informed that the City had decided that the meeting must be in public. Since the planned private meeting was to discuss budgeting which included my personal compensation, I did not attend. Nor was I invited. Had I been invited, or even if the slightest of a suggestion have been made that either there would be a public meeting on the topic, or that I might be asked questions at a private meeting, I would surely have been there. I had already supplied the City with written documentation and supporting data with which to make its budgetary planning, and I had expressly invited the City to ask me any questions that the Mayor and Council might have. Indeed some written questions were forwarded to me and answered promptly.

The Mayor will want to point out that he wasn't in office when the original firing of the reservoir contractor took place. But he was Mayor during the litigation. I would like to know what happened during those years that spiraled the City into this disaster. If he dealt with that the same way he dealt with other things, then I do understand.

Correction is still needed. It's needed at the polls.

Understanding the Melson, Child Support Formula

Many people know about the Melson Formula, Delaware's presumptive child support calculation. But what most people don't know is that there is another document that explains it and helps with interpretive questions.

The Family Court of the State of Delaware Delaware Child Support Formula Evaluation and Update, most recently of October 2, 2006.

When I was practicing in Family Law, I found this document to be priceless. And as hard to find as gold nuggets.

The formula is adjusted, sometimes annually. And policy decisions are made as to how to apply the formula to different circumstances. Going into a child support hearing with only the formula, and without having this document, is going in to a boxing match with one hand tied behind your back.

So here it is, in its entirety,the best kept secret in Delaware child support law. This edition is effective January 1, 2007.

Blogs as Evidence and Impeachment Material

Not shocking, but noteworthy and food for thought... as reported by Kevin at Real Lawyers Have Blogs, Blogs are being used as impeachment material for witnesses in lawsuits.

Along with the ease of publication that Blogs offer, don't forget that they are publication. Might Blogs by their ease of operation allow someone to publish before the complete thought process has been performed? I think so. Might this be a danger in Blogs?

Maybe just a danger in people.

Rule of thumb... Think... then publish. It is also helpful to run a draft by an associate, first.

Transparency in Federal Spending

President George W. Bush signed the Federal Funding Accountability and Transparency Act of 2006 (pdf) into law yesterday, September 26, 2006. This is a move in the right direction in letting the citizens of the United States know how money is being spent by the US Government.

Requirements of the Bill Include a Web site

A single searchable website, accessible by the public at no cost to access, where information about federal awards can be seen.

These federal awards include include grants, subgrants, loans, awards, cooperative agreements, and other forms of financial assistance. Also covered are contracts, subcontracts, purchase orders, task orders, and delivery orders.

Individual transactions below $25,000 aren't included, and before October 1, 2008, credit card transactions won't be covered, either.

Types of Information Covered for Federal Awards

1. Name of the entity receiving the award;
   
   
2. Amount of the award;
   
   
3. Information on the award including transaction type, funding agency, the North American Industry Classification System code or Catalog of Federal Domestic Assistance number (where applicable), program source, and an award title descriptive of the purpose of each funding action;
   
   
4. Location of the entity receiving the award and the primary location of performance under the award, including the city, State, congressional district, and country;
   
   
5. A unique identifier of the entity receiving the award and of the parent entity of the recipient, should the entity be owned by another entity; and
   
   
6. Any other relevant information specified by the Office of Management and Budget.

Will This be Useful?

Hopefully, it will. If nothing else, it will be a rich source of information for political bloggers, who showed with the passage of this bill that they refused to let it not be passed, by working together in a bipartisan manner, to identify some stumbling blocks in its passage: Blogosphere Unites in Pursuit of Masked Senator

A number of those bloggers were invited to the White House to attend a presentation which included the signing of the Bill.

President Bush made a statement at the signing of the Bill. Here's a short snippet from that:

By allowing Americans to Google their tax dollars, this new law will help taxpayers demand greater fiscal discipline. In other words, we're arming our fellow citizens with the information that will enable them to demand we do a better job -- a better job in the executive branch and better job in the legislative branch.

October Conference on Delaware's Waters and Water Policies

If you are interested in state wide policies and regulations concerning the use of water in Delaware, there's an upcoming conference that you may wish to consider attending. But you need to act quickly. Registration is required by October 2.

A press release from the Delaware Department of Natural Resources and Environmental Control (DNREC) points to a Conference on Delaware Water Policy, set for October 16th at the University of Delaware's Clayton Hall in Newark.

The Conference is a full-day meeting which will examine statewide water policy issues. Registration for the event is required, and the registration form can be found on the University's Water Resources pages. The cost is $25 to attend (which includes materials, lunch, and refreshments), and Senior citizens (65 and over) and students may attend free of charge by registering and requesting complimentary attendance.

The event is sponsored by:

• The Water Resources Association of the Delaware River Basin


• The Institute for Public Administration


• The Water Resources Agency


• The Delaware Water Resources Center


• The Delaware Section of the American Water Resources Association


• The Delaware Department of Natural Resources and Environmental Control

Here's the Agenda for the Conference:

2006 Delaware Water Policy Forum Series No. 6

The Delaware: Challenges and Opportunities Affecting a Working and Environmental River

Program Agenda

7:30 Registration and Refreshments

8:30 Welcoming Remarks
Dr. Jerome Lewis, Director
Institute for Public Administration, University of Delaware
Dr. Thomas Sims, Director
Delaware Water Resources Center, University of Delaware

8:50 Keynote Speaker - Water Resources Association of the Delaware River Basin
Robert Molzahn, President

Overview of the Delaware River Basin and the competing environmental, industrial and economic issues in the Basin

9:25 Roundtable Panel Discussion - Challenges and Opportunities for a Working River
Moderator: Robert Tudor, Deputy Director
Delaware River Basin Commission (DRBC)

Regulatory Initiatives
Kevin Donnelly, Director
Division of Water Resources, State of Delaware and Alternate Commissioner to the DRBC

Maintaining the River
Mike Arabatzis, Chief of Planning Division
U.S. Army Corps of Engineers Philadelphia District

Emergency Response
Gerald Conrad
U.S. Coast Guard

Water Supply Concerns
Christopher Crockett, Ph.D., P.E.
Philadelphia Water Department

Maritime Issues
Dennis Rochford
Maritime Exchange for the Delaware River & Bay

Industry Perspectives
Marc Gold, Esq.
Manko Gold Katcher & Fox LLP

10:30 Break

10:45 Roundtable Panel Discussion - Challenges and Opportunities for an Environmental River
Moderator: Gerald J. Kauffman, P.E., Director
Water Resources Agency, Institute for Public Administration, University of Delaware

Reporting on Environmental Conditions: The First State of the Basin Report
Jessica Rittler Sanchez, River Basin Planner
Delaware River Basin Commission

Living Resources, Flora and Fauna in the Delaware Estuary
Kathy Klein, Executive Director
Partnership for the Delaware Estuary

Successes in Fish and Shellfish Restoration in the Delaware Estuary
Roy Miller, Administrator of Fisheries
Delaware DNREC, Division of Fish and Wildlife

The Reemergence of the Delaware Bay Oyster
(Speaker TBD)
Rutgers University, Bivalve Oyster Laboratory

11:45 Audience Survey, Feedback and Discussion of Key Issues
Moderator: William McGowan
Institute for Public Administration, University of Delaware

12:30 Buffet Lunch

1:45 Recent Developments in Water Law and Possible Effects within the Delaware River Basin
Moderator: Robert Collings, Esq.
Schnader Harrison Segal & Lewis LLP

Kenneth Warren, Esq.
Wolf, Block, Schorr and Solis-Cohen LLP and General Counsel to DRBC

Timothy Weston, Esq.
former DRBC Commissioner representing Pennsylvania now with Kirkpatrick and Lockhart Nicholson Graham

3:00 Summary and Wrap-Up
Dr. Jerome Lewis, Director
Institute for Public Administration, University of Delaware

Some information about previous Water Forum Conferences is available on the pages of the Univeristy of Delaware's Water Resources Agency. Here are links to proceedings from previous forums:

• Proceedings of Water Policy Forum Series #5
  - Water-Friendly Landscape Design: A Prescription for Healthy Watersheds
  (1.31MB) published February 2006


• Proceedings of Water Policy Forum Series #4
  - The Historic Christina Basin: Delaware's First Watershed
  (1.3MB) published October 2005


• Proceedings of Water Policy Forum Series #3
  - Land Use Change and Water Quality: Assessing the Impacts and Planning for the Future
  (1.95MB) published July 2004


• Proceedings of Water Policy Forum Series #2
  - Drought.02: A Debate and Panel Discussion Concerning Water Supply Policy in Delaware
  (640K) published February 2003

Other publications from the Water Resouce Agency

This looks like it could be a pretty interesting Conference.

Monday Night Football in New Orleans

Our favorite New Orleans legal blogger, Ernie the Attorney, will be providing some insight and commentary, and even some roving reporters, on the the incredible proliferation of media that has come to his home city tonight, starting with his post: Monday Night Football Madness comes to New Orleans.

I'm looking forward to watching the game, and happy to see the energy and excitement around it. I'll also be cheering for the Saints in this one.

Keeping an Eye on Hewlett-Packard

Hollywood couldn't write a script this compelling. How does a company protect its trade secrets? Should spying upon your own board members and tapping their phone conversations be a routine business practice?

Hewlett-Packard had a problem with information discussed only in board meetings finding its way to journalist ramblings in the news. What steps do you take in that situation? The Christian Science Monitor probes some of those issues in The changing rules of corporate spy games.

A Dow Jones MarketWatch article notes that "Hewlett-Packard Co. is ranked second on Business Ethics magazine's 100 best corporate citizens for 2006" and the article points to some specific reasons why. But, in light of the company's methods to uncover sources of leaks, the good will gained from such efforts comes under question.

One of the questions that many companies should be asking themselves in light of this drama being played out in public, with news of SEC investigations, and questioning by the US House of Representatives, is how they can keep themselves from finding themselves in a similar situation? How can they plan before hand to handle problems like the ones that Hewlett-Packard faced in a manner that can be viewed in a positive manner?

Alex Simpson, at Corporate and Securities Law Blog, has been posting a storm about issues involving Hewlett-Packard recently, including today's post - HP Part XXXI -- Now Look What HP Has Dunn...

Newark Electric Woes - More than Meets the Eye?

Yesterday and Today I read in the News Journal that the City of Newark had tried to raise the U of D electric rates without raising the other electric customers' rates.

Most of the story in the paper is asking why did the City attempt to raise the UD's in violation of the contract between the City and the UD (which aparently limits the UD rate increases to the increases applied to other Newark electric customers).

I suspect that the real story is... why didn't the City raise the electric rates for all of its customers? And how much is that going to cost the city?

Doesn't the City of Newark buy its electricity elsewhere? Didn't all of those costs raise dramatically several months ago? All except the re-sold Newark electricity.

If Newark is having to pay more for its electricity now, and it hasn't raised its rates, I suspect that the loss to the City will be much larger than the reported 1.5 Million or 1.7 Million that it will lose from the UD contract.

I think that more needs to be learned about this problem.

Delaware Local History - A Look at Delmar

As a big fan of local history, I couldn't read this article in The Daily Times, and not make a brief post about it. The author, Brice Stump takes a look at the history of one of Delaware's towns in Delmar: Too big for one state.

Delmar straddles both Delaware and Maryland, and owes its existence to a desire to stretch a rail system to the Maryland border in the 1800s. I've never visited Delmar before, but now I'd like to see it. Nice story.

Aggregating Useful Information: Delaware Legal Notices

There are sites that aggregate content from other sites on the web, such as Google News, and provide a useful and valuable service. Others scrape content from different web sites around a certain theme or phrase, and try to rank highly in search engines while selling advertising on those pages.

Those second kind of aggregation sites are annoying, especially when you come across them while attempting to search for something. But a site that aggregates information from a wide variety of sources, and makes it easy to find useful and helpful information is a wonderful thing.

Tim Converse is the person at Yahoo who is in charge of trying to keep spam web pages from showing in search results. He describes some of the other sites that bring together information from different sites and sources in a post titled simply Aggregation.

Delaware blogger Mike Mahaffie points out one of those wonderful aggregation sites that can make things a lot easier for people in the legal profession in Delaware.

The site is Delaware Public Notices, and it collects together the legal notices that you see in the classified sections of newspapers around the State. The site is a joint effort between the newspapers of Delaware, and the Maryland - Delaware - DC Press Association (MDDC).

The types of notices shown include:

• Name Changes,


• Family Court proceedings, including things such as Divorce Actions, Protection from Abuse Hearings, Custody Actions,


• Public Notices of Meetings and Regulatory Actions from Delaware Government Agencies,


• Requests for Proposals and Invitations to Bid for Government Contracts,


• Notices of Public Sales,


• Merger and Acquisition Notices,


• Applications for Liquor Licenses and other Licenses,


• Notices of Rules to Show Cause in Delaware Courts,


• Notices of Approval for Work Release and Supervised Custody for Delaware Inmates,


• Abandoned Property and Escheat Notices,


• Mechanics Liens and Garagekeeper Sales Notices,


• Government Seizure Notices,


• Sheriff Sales of Property Notices,


• Administration of Estates and Appointments of Administrators from the Register of Wills, and;


• Other publicly published notices as required by law

It's nice to have these all together in one place.

The legislature of the State of Delaware was considering altering the requirements to post such legal notices in newspapers - instead making such notices available electronically in one centralized place. They haven't made a decision yet whether to do that or not, but a site like this one makes it easier for people to learn of notices published in a wide variety of papers in the State.

I've added the site in our navigation on the left, since I figure we will be visiting the site on a regular basis.

Estate Auction of Note

I noticed the following item while searching through Google News for stories about Delaware legal issues in the news: Delaware Statesman's Personal Effects Slated for Estate Auction.

On October 14th, an estate sale will be held for the Estate of one of Delaware's most respected political figures, former Delaware Governor Elbert N. Carvel. I hope that some representatives from the State will be present to bid on some of the political memorabilia from the estate - so that it can be shared with the residents of Delaware.

Celia Cohen wrote a thoughtful post last year, when Governor Carvel past away, which describes his impact upon the State, including an effort to spearhead the creation of a separate Delaware Supreme Court - Gov. Elbert N. Carvel, 1910-2005. A snippet from her article:

Carvel was a fearless politician, that rare breed, and he pressed the state to go in directions it did not necessarily want to go. In the 1960s he opposed the death penalty and favored a public accommodations law, civil rights era legislation that opened public places like restaurants and hotels to all, including African-Americans. He paid for it politically and personally.

The Historic Society of Delaware has a great gallery of photos from Governor Carvel's political career - Remembering Elbert Nostrand Carvel

The main administrative State Office Building in Wilminton is named after Governor Carvel, as well as a University of Delaware Research Center in Georgetown Delaware.

The front page of the auctioneer's site points to the online catalog for the estate sale, which includes such things as signed letters from John F. Kennedy, Jacqueline Kennedy, Harry Truman, Lyndon B. Johnson, and Bill Clinton, as well as finely detailed scrapbooks from the Governor covering his time in office, and other political memorabilia.

Celebrate Constitution Day with Delaware Law Office, as We Turn Five

It was five years ago, on September 10, 2001, that the Delaware Law Office blog started with a post about a practice in Family Court of Delaware of returning documents that were deficient in some manner, in a way which could be harmful to a case in that Court. The post asked for a reform of the system, and a careful solution that would make sure that people got their day in Court, regardless of a failure to do the paperwork correctly. A snippet from the post:

Currently there is a form utilized by non-judicial court personnel, as a cover, for their return of these documents to the filing attorney or pro-se individual. Frequently there is no specified Court Rule or statute cited, that the filing party is accused of violating. Frequently no reason is given except that the Clerk deems it so. In these cases the filing party usually already has clocked in his filing and relied upon that filing date with respect to the fulfillment of his or her legal responsibilities for the case. It may not be for a week or more later that the original filing is removed by the clerk, and sent back to the filer.

This removal of a filing from the Court's file, and thereby possibly changing the sequence of the filing of documents, can have dramatic legal consequences to the status of a case. And these actions are being taken by persons without any legal training? It is true that advising a party of a potential deficiency is a valuable tool in identifying and correcting errors before those errors travel through the lengthy path of litigation. But are we not substituting one set of errors for another, rather than resolving them when we have untrained individuals passing sentence upon legal filings that have been prepared, reviewed and signed by a member of the bar, and when these same untrained individuals unilaterally and without oversight take such action as to remove a filing from the Court?

We started with a bright promise there, only to experience an event the next day that transformed our nation in a number of ways, when the World Trade Centers came under attack. We didn't post that next day, or for many days after that. But we did resume posting, and the blog has covered a number of topics about Delaware, Delaware legal cases, federal law, privacy, security, and many other topics. We've made lots of friends around the country, and around the world through the blog, and would like to thank everyone who has read a few posts here, commented on something written, linked to the blog, visited the law office itself, and written on their own sites about something found here.

Posting has been light at the blog recently, and we hope to revitalize our efforts to keep informed of the legal issues around us on a local, state, national, and international level, ans share information about those here. We also will continue to share some of the personal issues that we face on a regular basis. Blogging has enabled us to reach out and share with others, and given us the opportunity to listen to those who want to discuss topics we've written about, and others. Thanks profusely for everyone who has been involved in the growth and development of this blog.

We also want to celebrate Constitution Day, which fell on a Saturday this year. Former Secretary of State Gen. Colin Powell will lead the nation?s school children in reciting the Preamble to the Constitution at 2 p.m. EST. A belief in the ideas expressed within the Constitution is what gives us the ability to post our thoughts and opinions in this blog.

Delaware is often referred to as the "First State." The National Archives page on the Ratification of the Constitution shows why, with Delaware being the first state to ratify the Constitution. The page has a link to the document signed by representatives of Delaware, which ratified the Constitution.

Some other links involving Constitution Day:

Constitution Day and Citizenship Day, Constitution Week, 2006
A Proclamation by the President of the United States of America

The First State Celebrates Constitution Day 2006
A statement by Governor Ruth Anne Minner

Delaware and the Bill of Rights
A page about the US Constitution from the University of Delaware Library

An Enduring Constitutional Democracy
The Rev. Canon Lloyd S. Casson on the Constitution and Constitutional Rights

Here's the conclusion from Rev. Casson's essay, which I think needs to be heeded:

At 2:00 P.M. on September 18, when General Powell leads the Preamble, I will thankfully remember his and my ancestors, and the many good citizens of this Democracy whose long suffering struggles, sacrifices and actions have removed much of what was wrong with the original document. I will pray from the bottom of my heart that my continued prayers and struggle to help achieve liberty, peace and justice for all here and abroad will, with God giving me strength, bear fruit and contribute to the legacy of an enduring, flourishing constitutional democracy. I pray that you will join me.

The Constitution is only a piece of paper. It's our belief, and our struggles together that make the ideas found within the constitution come to life. The Constitution doesn't guarantee us rights - rather it gives us the right to fight for, and protect those rights.

Thank you for sharing with us this Constitution Day, and the fifth anniversary of the Delaware Law Office Blog.

A Step Forward for Loser Pays in Delaware

In July of this year, Governor Minner signed House Bill 454 into law. This law mandates mediation and a Trial before a Master if mediation fails, in suits brought before Chancery for deed restriction enforcement.

AND, it contains a loser pay provision! Woot!

Interestingly, not only does it allow for the loser to pay, it presumes it. Look at the language of that part here:

The nonprevailing party at a trial held pursuant to the provisions of this section must pay the prevailing party's attorney fees and court costs, unless the Court finds that enforcing this subsection would result in an unfair, unreasonable, or harsh outcome


Now, people will be encouraged to act (and litigate) in good faith. Well, at least as far as this type of case.

This new section is 10 Del.C. 348.

Revenuers Raid Senior Citizens

Partial word is arriving from the Mountains of Western North Carolina, where reportedly Federal Revenue agents yesterday raided a senior citizen compound at Land Harbor. Bingo, shuffleboard, bridge, and poker games were shut down. With average big prize winners from the $2.50 range for a full night of bridge, its hard to see how the IRS trip was cost effective.

No stills or other liquor operations were discovered.

No injuries have been reported.

Turn The Page

Today was a transition day for me. It was my last day on the bench of Newark's Aldermans Court. It was a grand four year tour of duty, that I am happy about.

We accomplished a number of good things for the City of Newark during those 4 years. I will look forward to writing a series of upcoming articles about the tasks that are yet to be tackled.

Now, I can take criminal defense representation cases in this Court, although I will probably only take a few as my schedule is fairly tight.

Newark City Code Makes it to the Net

I was happy to see that we can now finally access the Newark (Delaware) City Code!

School District Short on Learning, Long on High Paid Administrators

Troubled Christina School District - troubled because of its own mismanagment - has cut 374 teachers, nurses, specialists, and secretaries (according to a story in the News Journal); eliminated educational programs and cut back on basic supplies. But they haven't let a single high paid administrator go, nor cut any of those positions.

Where are the children in the District's self serving priorities?

I wish the State would take over this district, abolish it, and start from scratch.

Delaware Supreme Court Holds Door Open for Loser to Pay

Justice Jacobs delivered the panel decision which reversed a Superior Court denial of a request for attorney fees. The Court describes the "american rule" which generally requires each side to bear its own costs of litigation, and then holds that the lower court took too narrow of a reading of the "bad faith" exception.

In this case, where the contractor bulldozed down the historical buildings despite the denial of his application for a permit to do so, the Court was hard pressed to think of a worse example of bad faith.

The matter was remanded for Superior Court to take a new look at the request for fees by the Historical Society.

Photo by News Journal file/SCOTT NATHAN

This is Michael Zimmerman's method of dispute resolution. Remind me never to do business with him.

loser pays

Overlawyered pointed out this 9th Circuit case in which the District Judge made the loser pay for the expenses of the Respondents in defending against his frivolous claims.

It seems that the frivolous litigant sued the airport and its municipality because his private jet exceeded their weight restrictions. He had to use a smaller private jet to fly in and visit his vacation home. Awwwww!

The Court of Appeals remanded for a better explanation of the District Court's method of calculation... but it doesn't look like that's going to be a problem.

Fighting Back Against Red Tape Hassles

In a story i found on Ernie the Attorney, a person experiences great difficulties in cancelling his AOL account, and he gets it all on tape! Here's his TV interview, with audio from the event.

Massive publicity from this prompted an AOL apology and a firing of the CSR, along with a melt-down of the ISP-Server where the sound bit was originally hosted.

Buying Back Delaware's Courthouse

One of my favorite places in the City of Wilmingon is the old Daniel L. Herrman Courthouse, which was sold to MBNA four years ago when the Courts had decided to move to a new building.

The Wilmingon News Journal is reporting that the State is considering buying back the courthouse.

MBNA had purchased the building to use it as their corporate headquarters. MBNA was one of Delaware's true business success stories, starting out in a small shopping center in Ogletown, Delaware. It found success by partnering with affiliates, first Georgetown University and then many others, to become the world's largest independent credit card issuer specializing in affinity marketing.

At the time of the purchase, the building next to the Courthouse was the Bank's headquarters, and they had purchased additional buildings on blocks surrounding that building. Overall, they had seven buildings located in this central part of the City, and were planning on spending over $32 Million to renovate the old Court site.

After starting some construction on the Courthouse, including creating elevated walkways adjoining the building to other MBNA buildings, they halted construction after some internal changes in management including the retirement of the founder of the company, Charles Cawley, in 2003.

In 2005, MBNA was purchased by Bank of America, and developmental plans in Wilmington appear to have changed. Bank of America is contructing the Bank of America Tower in New York City to act as its headquarters. Rumors started circulating around then that the State might seek to repurchase the old courthouse.

Much of Delaware's history is tied to the Courthouse across from Rodney Square, in Wilmington. The tenth street side of the building was the long time home of the Mayor of the City, and an inscription above the door on that side read "City Hall."

The other side of the building had an inscription above it reading "Court House" and was home to a number of Delaware's Courts, including the Court of Chancery, and Delaware's Superior Court. Municipal Court, the Court of Common Pleas, the New Castle County Sheriff's Office, the Prothonotary, the Recorder of Wills, and many other offices held homes in the Building. A long hallway, from one side of the building to the other was where were people could come visit the Row Offices of the County.

A News Journal Article from 2003, MBNA pays homage to the past, notes that the building was constructed in the early 20th Century as part of an effort to beautify Wilmington, and provide it with a social center. As a place where one might conduct almost all business one could, with both the City of Wilmington, and New Castle County, it filled that role well. Add to it a central public square across the street in Rodney Square, named after Caesar Rodney, and you had a good start. The nearby Wilmington Library on another side of the Square, and a post office on the opposite side worked to help complete this social center for the town.

I've felt that the moving of the Courthouse brought a lose of a center to the City. Maybe it can refind it's focus if it goes through with this purchase.

Kilroy was here... and he talked about education

Another Delaware Blogger... at Kilroy's Delaware tonight is talking about Delaware's high drop out rates. Depending upon who you believe, they range from 18% to 39%.

Delathought Ducks for Deep Cover

I was saddened today to see that a fellow Delaware Blogger has been forced to close his/her blogging. I was sad because of a sense of loss as to our right to freedom of speech.

For fear of reprisals, Delathought indicates that he/she must give up this right. When Delathought gives up this right each of us, you and I, lose a little of ours.

I don't know what the issue is - who Delathought is said to have exposed - and frankly I couldn't care less. Part of it seems like an ongoing drama of petty politics. And politics are so disgusting that I can't bear to read as much about it as I should, in the fulfillment of my civic duties.

As long as Delathought was lawfully and responsibly exercising this right, then I support it. If instead there was maliciousness involved, then by dang it's a good thing it stopped.

The free (and responsible) exercise of our rights to free speech is our most important defense from tyranny and oppression. And if you think that there are not those in our government that would leap at the opportunity to oppress us, then you just haven't been paying attention.

I for one, would rather see your blog up and running constructively criticizing me, than to see someone sink into silence for fear of reprisals upon family and friends. But I am sometimes a realist too, and if necessary to protect my family and friends I like to think I could bring myself to shut up. It's a balance of idealism and realism that we each must at some point strike.

Attorney General Hopefuls Blast Prison Defense Hiring

An election for Attorney General of Delaware looms on the horizon, and the candidates both appear to be fairly well qualified for the position. Long time Delaware Prosecutor Ferris Wharton, and bright younger hopeful Beau Biden both seem to be inspired choices from their parties to fill the role of chief administrative lawyer for the State.

I was happy to see an article in the Wilmington News Journal which asked both about a recent hiring by the State of Delaware of an Attorney to help the State in an investigation of Delaware's Prison system.

Both responded the way I hoped they would, in Top prosecutor hopefuls blast D.C. lawyer hire, with intelligent and reasonable arguments why outside counsel probably wasn't appropriate or necessary, especially at $425 an hour.

This is the campaign that I want to see from both sides - thoughtful, intelligent expressions and sharing of opinions on issues that matter.

It's not necessarily what we've been getting so far.

There's been some sniping from one side that the other candidate isn't experienced enough for the position, and it's the kind of dirty campaigning that I'm not sure they should really be proud of engaging in.

We see a "Paid for by the Republican State Committee of Delaware" at the bottom of a site titled Beau Biden for Delaware Attorney General ? Beau's Not Ready. I don't think that this kind of site is really necessary, nor does it make the Republican State Committee of Delaware look all that good.

One of the things that the "Beau's not ready" page does is question his qualifications on the basis of the fact that he could not hold the position of Family Court Judge (five years bar membership required), Arbitrator in Superior Court Civil Cases (five years bar membership required), or preceptor (mentor) to a law school graduate hoping to become a member of Delaware's Bar (ten years bar membership required).

I want to explore those "qualifications" briefly.

They are based upon length of time as a member of Delaware's Bar. So, a lawyer who becomes a member of Delaware's bar and handles only real estate settlement cases for ten years would be qualified for any of those positions under that definition of "qualifications." But, they just might not be qualified to be an administrator of a large law department prosecuting criminal cases, and civil disputes.

If a retiring Supreme Court Justice of the United States moved to Delaware, he or she also wouldn't be qualified to hold the position of Delaware's Attorney General according to the "Beau's not ready" page.

Those standards for Family Court Judge, Arbitrator, and Preceptor have different motivations behind them than the standards that are set for Attorney General of the State of Delaware. Under the requirements for Attorney General, the person running doesn't even have to be a lawyer. Yet, how unlikely would it be that a political party would put someone up for contention for that office who was so unqualified that they couldn't even make a race of it?

I'm happy to hear statements on the issues from both candidates. As for the determination that either candidate isn't ready for the position, maybe it's better for both parties to let the people voting make that determination on their own.

New Crime Deterrent

Rockdale, Australia , a suburb of Sydney, has a new plan to keep kids from loitering in public parking lots: blasting Barry Manilow songs over a loudspeaker. The Guardian is reporting that the town council has decided to annoy teen hooligans (or "hoons" as they are known in Australia) with mellow songs like "Mandy" and "I Write the Songs" after a similar experiment was successful using Bing Crosby to keep teens from congregating in a shopping mall.

If you are able to convince your own town council to try this experiment, Amazon.com has a wide range of Manilow albums to choose from.

Movement towards Medicaid reform

There is an ever-so-slow movement towards Medicaid reform in some states, which allows the elderly or infirmed individual to stay at home with subsidized care rather than mandating nursing home residence.

A recent Wall Street Journal article, as presented by the American Association of People with Disabilities, shows us several States' rational changes to allow this common sense option.

Going to Court for Nothing: Consumer Activists in CCP

A couple of years ago, we wrote about a small group that protested at Christiana Mall, in Buy Nothing and Get Arrested
.

The activists returned to the same mall this past November, to protest consumerism, and were arrested again. Two members of the group were set to appear in the Court of Common Pleas this morning.

The attorney representing the members of the group, Joe Hurley, informed the Wilmington News Journal that he would be asking for a continuance on todays' trial for two of the members, so that all four cases could be combined into one.

The group started a web site, and have been collecting money for their legal defense through the site. If you would like to find out more about them, and why they are protesting, they also have a new blog: Much Ado About Nothing.

The "Buy Nothing Day" movement seems to have spawned more than a couple of protests this past winter. Adbusters.org, which has been promoting the event has pictures and stories from more protests around the globe: Buy Nothing Day 2005.

Delaware's Restrictions on Freedom of Information in Federal Court Today

A Freedom of Information Act (FOIA) request is an interesting beast. Sometimes it's the only way to get information in a timely manner from a government agency.

There's a Federal Act for the Federal Government, and individual Freedom of Information Act requests for the states. After working for the courts in Delaware for a number of years, I saw more than a couple of Federal Freedom of Information Act requests directed at Delaware agencies. I can't tell you how they were treated ultimately, since I was responsible for passing those along, instead of making any decisions at all upon them. But, ideally FOIA requests for State Information should follow the state law governing it.

There's an issue with Delaware's Freedom of Information Act that presently has a review of the law in Federal Court right now. It was only available to residents of the State of Delaware, when a Federal District Court Judge decided that the restriction to state residents was inappropriate and unconstitutional.

In a State like Delaware, where so many Fortune 500 companies are incorporated, it's likely that information requests made to Delaware's Government will arrive from residents of other states. The request at the heart of this dispute involved an activist who had questions regarding a merger of two financial companies. His request was denied because he lived in New York. He brought the case to Federal court, where that limitation was removed.

The Delaware Department of Justice appealed that decision, and a three judge panel held oral arguments on the issue. Is this type of restriction an unconstitutional limitation on interstate commerce? See: Judges skeptical of Delaware's limits on public records access.

I don't understand the restriction myself. Maybe someone could articulate a reason for it to me. It sounds like the judges asking the Delaware Attorney present were having problems with that, too.

Common Cause Forum to Discuss Family Court Records

A forum hosted by the Delaware branch of Common Cause tomorrow will take a close look at Delaware's Family Court, their secrecy, and some allegations involving record keeping in the Court.

The meeting will be held at the Dover Public Library, located at 45 South State Street, Dover, Delaware. It begins at noon.

The Delaware Court Reform Initiative will also be involved in the meeting.

Testimony received at the meeting tomorrow will be forwarded to the State's Family Law Commission, for their meeting on Thursday, so if you attend and would like to speak, you may want to bring a copy or your testimony on paper so that it can be forwarded to the State agency.

Delaware Watch has a copy of the Press Release issued by Common Cause about the meeting.

(note: Issues with our Blogger software caused the posting of this message to be delayed a number of days, and after the forum meeting. The Wilmington News Journal reported on the meeting on Tuesday, and around 35 people attended, many of them bringing stories with them of their court events in Family Court. The Family Law Commission meeting is today, and maybe some of the testimony from Monday's forum will persuade a reaction of some type. Apologies for the delay.)

Getting Squeezed At The Gas Pump?

It's frustrating enough having seen the price of a gallon of gasoline rise from $0.25 to $3.00, but that's not what's got my shorts in a bunch today. What irks me is what I consider to be a deceptive trade practice. I have seen it at a variety of stations over a variety of time periods. It goes something like this:

You have 3 grades of gasoline to choose from at the pump. From your experience, if you choose the highest grade... you will be filled up and on the road in about 2 minutes. If you choose the middle or basic grade of fuel, it will take you 15 minutes to fill the tank. The pump speeds are manipulated by the station to work faster for their high grades and slower for their lower grades.

Yesterday I topped off my tank, and it took me 16 minutes and $52.50. I not arguing about the money today, but I mind being pressured to buy the higher grade because of the slower pump speed. And, I feel that the station's practice in this regard is deceptive.

Deceptive trade practices are monitored by the Federal Trade Commission ( FTC ), and also by state law. In Delaware, it appears to me that the relevant sections are in Title 6 of the Delaware Code. I don't practice in those areas of the law, but it appears my case will be difficult to enforce.

I stand ready as a Plaintiff if there is a licensed attorney out there who can bring this action. And I stand ready as a listener if there is an engineer out there who can explain to me how I am wrong about my observations.

Bad Ads are Bad for Profession

Republished here in its entirety with the permission of the author, Richard A DiLIberto, Jr, Esquire, from the Winter/Spring edition of the Advocate, a publication of the Delaware Trial Lawyers Association:


INJURED IN THE PAST 30 DAYS?

$500 REFERRAL FEE*!

TURN THAT WRECK

INTO A CHECK!

AUTO ACCIDENT &

WORK INJURIES ONLY

*MUST MEET REFERRAL CRITERIA.

This advertisement, emblazoned in vibrant hues of blue, red and yellow appeared on a billboard high above 4th & King Streets in Wilmington. It included a photo of fanned $20.00 bills in a tightly gripped fist. It was directly adjacent to the New Castle County Courthouse, and in plain view for jurors at the Courthouse performing their services. The billboard also gave a toll-free number and website, but did not identify a lawyer or law firm. The website claims to refer people to experienced Delaware personal injury lawyers as well as healthcare professionals. It has many of us disappointed and frustrated.

I cannot imagine how ads such as this do not harm our image, perhaps irreparably, and even poison the jury pool against our clients. Your DTLA Board of Governors and Legislative Committee members have a Herculean task trying to improve our image and maintain credibility with the public and elected officials. DTLA Boards and Committees labored for 27 years before us to build our reputation and good will. Crass lawyer advertising can undo years of work and goodwill in the blink of an eye (or the glance at a billboard).

Everything we do and say no matter where or when we do or say it reflects on each of us. We are always lawyers. We are never 'off duty.' When we scream at the Little League umpire for making a 'bad call;' insult the waitress; fail to hold the door open for an elderly man; or exhibit rudeness to the janitor, we do it with the title 'lawyer.' And people notice. And people talk about it. Some of those people wind up on our juries. Many talk with their elected officials.

I am not advocating for eliminating lawyer advertising. Many members do it, and do it with dignity. But, we must put ourselves 'in the shoes' of the public, and imagine the reaction, not only to the ad, but to the profession.

Ads which trivialize our important duties, and cheapen or belittle our clients' tragedies, are an insult and an embarrassment to us all. And while some may reap short term gain from a few cases received via the ads, each of us, and our clients, pay an immeasurably long-term price in return.

The Smithy Code

In the Court's 71 page Judgment dismissing the Claimant's copyright infringement case regarding the Da Vinci Code, the Judge inserted a code himself.

Can you be the first to decipher it?

Hint- See the individually italicized letters in the opinion.

GAO Weighs-In On Corporate Formations

In what seems to me to be a nicely put-together 77 page report, the GAO acknowledges that there are differences in the ways that States handle incorporations, and gather information regarding the owners.

The GAO does not make recommendations in this report, but suggests that any changes be made with deliberate care, and in consideration of the many competing concerns.

No Child Held Behind

Our public education systems are woefully inadequate. No wonder why Delaware has a high rate of private school attendance. And they are becoming more and more ineffective by the impostion of politically targeted testing programs at the expense of actually teaching the children.

Our children are spending an inordinate amount of time taking tests that aren't conducive to their education. The tests are to propagate political agendas. Why can't our education system have an agenda which includes educating the children!?

Ask your children how much time during their 4th marking period is going to be devoted to test taking. My kids are indicating that it is their entire 4th marking period... that there isn't room in their school schedule for learning for the rest of the school year. This is outrageous (even giving allowance for childrens' propensity to exagerate).

And this is in addition to the 4 weeks they have already dedicated to non-educational testing earlier in the year. (the 4 weeks are half-day testing and half day easy days... days where it is alleged to be mandatory that there be no challenging work and no homework). This is an estimate of the combined time for the DSTP testing and the MAP testing.

It makes me sick to think of how our future generations' education has become a pawn in the political game, and a casualty of En Passant.

If we have to have a slogan for education.... shouldn't it be... "No Child Held Behind" instead of "No Child Left Behind"? (insert snide remark about your politician of choice here)

I suppose it's easy not to leave anyone behind if you never do anything.

Hard drives and pending litigation

In a scenerio that's becoming more common, computerized evidence can play an integral part in pending law suits. And the destruction of that evidence can be significantly harmful to a case.

Delaware's State Police have been the target of at least 17 lawsuits since 1997, according to a Wilmington News Journal article from last June.

In a couple of those cases which targeted the former head of the State Police, who left the force last year, a federal judge has made a ruling sanctioning the state police for erasing their former chief's computer.

According to the News Journal, the hard drive for the computer was reimaged and reassigned according to routine practices within the agency.

There's probably a lesson there to be learned that goes beyond these cases against the Delaware Police force.

A recent New York Times article, Deleting May Be Easy, but Your Hard Drive Still Tells All, discusses some of the computer forensic issues that involve hard drives that have been written over. It starts off with an example of a software company almost missing out on a $ 64 million payday, when documents involved in a sale of a company they partly owned showed they were only five percent owners, instead of fifteen. The electronic documents that indicated the percentage of ownership had been changed to remove a "1" which would mean that they would only receive $32 milliion from the sale instead of $ 96 million.

A consulting group, which specializes in electronic discovery and forensics was able to determine when the document was changed, and who made the changes. It can be expensive to conduct that type of reconstruction of evidence, but this was a case where the cost was probably worth paying.

A findlaw article from a couple of years ago covers a number of points about this aspect of discovery: Delete At Your Peril: Preserving Electronic Evidence During The Litigation Process. As they note there, in these days after Enron people often know that they shouldn't destroy paper records that might be asked for during discovery, but electronic documents might be overlooked at a source of information that should be maintained and preserved.

These can include such things as:

• e-mails,


• electronic calendars and


• drafts of documents

Many companies have data retention policies that determine when data of different types can be purged. But, those policies need to adapt and change when pending litigation may find some of the data possibly relevant to a law suit.

There are a number of potential risks involved in not preserving evidence that might be relevant to a pending case. These can range from sanctions to something significantly more serious. As the Findlaw article notes:

At a minimum, if you have been found to have destroyed evidence, the judge may draw or the jury may be told it can draw an inference that the materials you destroyed were harmful to your case. Courts can also impose monetary sanctions and exclude evidence and witness testimony as a result of misconduct. In extreme circumstances, if a court finds clear and convincing evidence that you have intentionally concealed or destroyed evidence, your case could be dismissed (if you are the plaintiff), or you could be found summarily liable without a trial (if you are the defendant).

As the judge noted in the Delaware case, the State Police probably should know better than to have reused the hard drive in question. If you run a business or organization of some type, do you have policies in place for the preservation of electronic documents?

Tax Attorney v Accountant: The Tax Free Extreme Makeover: Home Edition

As the April 15th IRS deadline approaches for filing returns, I recently learned what the differences and roles are between tax attorneys and accountants. As a University of Delaware senior, I am currently taking a class that has a variety of guest speakers from the Delaware legal community. Recently, I had the opportunity to listen to a former tax attorney talk about the roles of a tax attorney and the issues they face.

One of the issues addressed was the "attorney-client privilege" and how Certified Public Accountants can be forced by the IRS to testify against you in a criminal trial. However, tax attorneys are legally protected and cannot testify against you. More importantly the role of a tax attorney is to provide both people and/or businesses with tax advice so that they may make full use of the ever-changing complexity of the IRC code. Interestingly enough, in the attorney's speech he talked about the primetime ABC hit show "Extreme Makeover: Home Edition" and how the families on that show do not have to pay any taxes based on the renovations that are done to their homes. After some research, I found out that ABC can get away with this because of Sec. §280A (g) of the IRC Code. The provision basically says that if you rent your house out for a period of less than 15 days, then any rental income you receive is tax free.

On television, the family is given an all expense paid trip to Walt Disney World or some other vacation resort so that the family can lease the house out to ABC. ABC, Sears and other sponsors are given a period of 10 days to complete the house construction. When the family returns, any improvements that are made to the house are in fact considered "rental income" and therefore the family does not have to pay any taxes on the improvements made to the house. However, I am unsure when the families have to pay the adjusted property and school taxes. Regardless, I thought it was a really intuitive and creative use of a tax code that Congress is always changing from year to year.


POSTED BY: Craig J. Springer

Is the IRS going too far this year?

A major dilemma that has arisen this tax year is the bartering of body parts. There have been reports stating that two women connected through the Paired Donation Consortium, (which facilitates matching between living organ donors), are donating kidneys to the other's husband.

So what does all of this mean?

Considering the trillion dollar deficit our government has, the IRS can and might possibly force these women to pay taxes on the kidneys that helped save their husbands' lives. These women are not donating to their own husbands because of blood type mismatches. Because the women are bartering kidneys, they do in fact have gross income. These are not gifts, because each has conditioned donation on getting something in return. Each has a basis of zero in the exchanged kidney.

Surprisingly, each woman has an amount realized equal to the fair market value of a kidney. These days, a kidney can be worth as much as $10,000.00 on the black market in countries like India and China due to many indigent families who are searching for income in order to feed their families. However, the lack of cash value of the kidneys is not an obstacle to the taxation of bartered exchanges in the U.S.

IRS rulings suggest that the sale of blood and blood products would be ordinary income and perhaps personal services compensation income as ruled in the United States v. Garber, 607 F.2d 92 (5th Cir. 1979). There's no charitable contribution deduction because no charity receives the kidneys. The substance over form doctrine treats the exchange as a swap of kidneys between the two women, each then making a gift to her husband.

The only way I can imagine that someone could possibly mitigate the burden would be to list the medical expenses that were incurred during the surgery and hope that the expenses would reduce the amount owed to the IRS. However, I really doubt that the IRS will pursue the taxation considering that this was a surgery that happened once and did not lead to a consistant pattern. But I did find this story to be extremely interesting.

Posted by: Craig J. Springer

Ring-Ring

The phones are working again. Thank you for your patience.

No Phone Service

We are currently among the 900 Verizon customers in Newark that still do not have phone service. We apologize for the inconvenience.

The NewsJournal has a short piece on the situation here.

We are hoping that service will resume shortly.

Shipping Clerk

Small Professional Newark Office in need of organized, responsible person to learn and grow with the company. Full time, entry level position with the opportunity to demonstrate a variety of skills. Position offers significant growth potential for the right applicant. Good computer skills a must. Benefits.

Please forward resumes to anne@delawoffice.com or fax to 302-286-6337.

Spreading the Yankee hate...

Richard Roberts, Jr., Esquire of Roberts & Roberts, a New Jersey intellectual property firm, pointed me towards an ESPN.com article about a case that he is working on. Rich is a big New York Yankees fan, but he's working against the Bronx Bombers on this one.

A Red Sox fan named Mike Moorby has decided to fight back against the high and mighty New York Yankees. He created a company to sell hats and shirts with his Yankees Hater logo. Now the "Evil Empire" is saying that his logo, a Y and H with devil horns, is infringing upon their trademarked NY logo. The case is scheduled to go before the Trademark Trial and Appeal Board before the end of the year.

I have to admit to being a Yankees hater myself, so I can't help but root for Mr. Moorby. But, as a lawyer, I think that he is right. There should be no confusion between his logo and the Yankees' logo and it should be obvious to consumers that they are not purchasing Yankees Hater hats directly from the New York Yankees.

You can purchase Yankee Hate gear at www.yankeeshater.com . I might have to get myself one of those Baltimore hats.

Video Games and Violence: Delaware to Criminalize Sale of Video Games

A piece of legislation before the House of Representatives in Delaware is taking a stand against violence in video games. The Bill, An Act to Amend Title 11 of the Delaware Code Relating to Video Games and Obscenity, would make the sale, rental, or "providing access" by an owner, operator, or an employee of a business of games without ratings a class A misdemeanor.

Title 11 is the part of the Delaware Code which involves Criminal Offenses, and many of the statutes listed provide specific details involving those crimes, including the elements of the crimes that must be listed in an indictment of information, and which need to be proved "beyond a reasonable doubt."

The Bill has two sections that would be added to Title 11. The first, as I noted above, would make it illegal for businesses to provide access to video games that don't include ratings. The second would make it against the law for a person to sell or rent a game to an underage person, and requires checking proof of age prior to sale or rental.

I know my brother has sold nintendo video games through eBay. I'm not sure if this Bill would cover him, but I'm also not sure that the games he sells have ratings on them. It's also difficult to check ID online. Will this legislation apply to him?

More importantly, I've seen a few people refer to video games as free speech. Does this law criminalize free speech?

The Bill leaves a lot of questions open. I have more, and I'm sure that the folks who make video games, the folks who sell them, and the people who buy them will also have questions.

Here's the first section of the Bill:

Section 1367. Sale, rental, or providing access to unmarked video games; Class "A" Misdemeanor.

(a) No owner, operator or employee of a business shall sell, rent or otherwise provide to another a video game unless:

(1) The official rating of the video game is clearly displayed on the outside of its cassette, case jacket or other covering; or

(2) If the video game has no official rating, the video game is clearly and prominently marked as 'not rated'.

(b) As used in this section:

(1) 'Official rating' means the rating of the Entertainment Software Rating Board.

(2) 'Video game' means any copy of a video game that is meant to be played with a hand-held gaming device using a television or computer.

(c) A person who violates this section shall be guilty of a Class "A" Misdemeanor.

As I was looking around the web for information about video game ratings, I came across an excellent page on the wikipedia titled Video game controversy, which goes into a lot of depth covering issues involving criticism and censorship issues involving video games. I'm not convinced that violent video games cause violent children, and I'm also not convinced that a State should step in and act in place of parents when it comes to determining whether or not they should play certain games.

But it's good to be informed about the issues surrounding games.

The legislation surrenders responsibility for determining whether or not a game is harmful to a child by relying upon guidelines set up by a private company, the Entertainment Software Rating Board. The ratings from this Board were intended to be used as advisory information for parents when deciding whether or not to purchase a game. But, they weren't intended to be the determining factor in deciding whether or not criminal charges should be tied to the purchase of a game, or the sale of a game to a minor.

The second section from the Delaware House of Representatives does impart criminal offenses to those sales:

Section 1368. Unlawfully providing access to mature or adult only video games; Class "A" Misdemeanor.

(a) It shall be unlawful for a person to sell at retail or rent or attempt to sell at retail or rent, to:

(1) A person under the age of 17 any video game with an official rating of "M" for mature audiences;

(2) A person under the age of 18 any video game with an official rating of "AO" for adult only audiences; or

(3) Any person any video game rated for mature or adults only audiences without first requiring the person to show an identification card that provides a date of birth.

(b) As used in this section:

(1) "Official rating" means the rating of the Entertainment Software Rating Board.

(2) "Video game" means any copy of a video game that is meant to be played with a hand-held gaming device using a television or computer.

(c) A person who violates this section shall be guilty of a Class "A" Misdemeanor.

Microsoft has a nice guide to ratings for video games, and it's good to see that some thought went into this system. But I'm not sure if the ratings should be tied to criminal offenses. Some interesting discussion on this topic over at gamepolitics. Another thread from there on this topic generated more than 400 comments from readers - Dishing More Dirt on Last Week's Delaware Hearing

I will say that I'm convinced after reading those that a game is as much free speech as a music CD or a book. A Wall Street Journal article from this past December, Courts Lift Curbs on Kids Buying Violent Games appears to take the same stance, and points to court battles over the subject, including a passage from District Court Judge Richard Posner:

"Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture," Judge Posner wrote. "To shield children right up until the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to deal with the world as we know it."

From: American Amusement Machine Ass'n v. Kendrick, 244 F.3d 572 (7th Cir. 2001)

The Wilmington News Journal has offered an editorial on the subject. I can't say that I agree with all of their editorials, but I think they are spot on with this one: State shouldn't assume parent's role in picking which games kids play.

International Law a Threat to Freedom?

Supreme Court Justice Ruth Bader Ginsburg acknowledged recently that she has received death threats during her time on the court.

One threat in particular, posted online, railed Ginsburg and former Supreme Court Justice Sandra Day O'Connor for their use mention of international law in some of their opinions. The author of the threat says that their use of international law in their rulings is "a huge threat to our republic and constitutional freedom," the author then goes on to threaten their lives.

What this person does not realize is the bitter irony in his statements, even if the author does not follow through on his death threat the mere writing and publishing on the internet of such a statement is more damaging to our republic and our Constitution than all of Ginsburg's international law references combined, regardless of whether you agree with her judicial opinions or not.

Our founding fathers designed a Constitution that was nearly perfect, and from and within that Constitution sprung many important ideals which are necessary for our republic to function the way we expect it to. One of the most important of these ideals is the notion of judicial independence.

Our founding fathers recognized that this was important, which is why Judge is the only office in the federal government that is given an irrevocable life term. Short of breaking the law Justices and federal Judges cannot be removed from office by anyone. These life terms, in theory, give justices the necessary independence to make their decisions free of political constraints.

Whereas politicians are not apt to make unpopular decisions, no matter how right that decision may be, Judges have the freedom to make unpopular decisions in theory, because they do not have a constituency to please, as does a politician.

What the person who threatened Justice Ginsburg did was threaten judicial independence. No matter how unlikely it is that someone would actually assassinate a Supreme Court Justice, the threat and Justice Ginsburg's knowledge of it are enough to possibly affect her future decisions, and that is "a huge threat to our republic and constitutional freedom."

Posted by:
Frank Molfetta

New Family Court Rule 16.2

Rule 16.2 of the Family Court Civil Rules has been amended, effective March 1, 2006.

Here is a link to the new rule: Rule 16.2(a)(4)

The amendment added the language "for the petitioner and children." This relates to Rule 16.2(a)(2) that states that "Children between the ages of eight and sixteen at the time of filing shall participate in a Court approved education program with either parent." Normally when a parent completes the Parenting Education Course, they receive a certificate that is filed with the Court. According to the amended rule, that certificate must now also state that the children attended the course if they are between the ages of eight and sixteen.

I don't think that this new rule will affect parents taking the course pursuant to 13 Del. C. Section 1508(h). Under that section, when there are children of a marriage under 17, and the parents are getting divorced, the parents must attend the Parenting Education Course. If neither party is seeking custody or visitation, then the children would not have to attend the course.

The strange section is 13 Del. C. Section 1508(g) also known as the Affidavit of Children's Rights. This section requires that a divorcing parent sign an affidavit showing that the parent has read or been advised of certain children's rights. The strange thing is that there is no age cut-off for this rule. Therefore, even if the children are grown, the parent still needs to file the Affidavit of Children's Rights before the Court will grant a divorce.

Congratulations to Craig!!!

Congratulations go out to our legal assistant, Craig Springer, for being accepted into the Thomas M. Cooley Law School in Lansing, Michigan.

Named for the former Michigan Supreme Court Justice, the school was accredited by the American Bar Association in 1975.

Making a federal case of Delaware's prisons

The Wilmington News Journal reports this morning that the US Department of Justice will be taking a very close look at Delaware's prison system.

We've been hearing about inadequate health care at the Delaware facilities for many months now, and other issues surrounding Delaware's prisons. While it's sad that the federal government has to step in, it's good to hear that they are.

Amnesty International has also leveled criticism of the treatment of women in Delaware's correctional institutions. In addition to a report on the treatment of pregnant women in prisons, they also look closely at specific Delaware issues (pdf) involving Custodial Sexual Misconduct and pregnancy in custody.

The practices we've been hearing about in Delaware's prisons through the News Journal paint a grim and inhumane picture of how people are being treated once entrusted to the State's care. Prisoners and citizens alike deserve better from their government. Let's hope that this is the start.

Celebrating Presidents Day 2006

There are a lot of interesting articles about the Presidents of the United States either linked from or on the pages of the National Archives. Here are some of the ones I read tonight:

The Surprising George Washington
Our first president was also our first ex-president,and this article touches upon what that meant as well as busting a few myths about his life.

Thomas Jefferson and the Patent Act of 1793
A look at how Secretary of State Jefferson attempted to influence Congress on the passage of the patent act.

Fireside Chats of Franklin D. Roosevelt
Very readable. I could almost envision myself sitting next to the radio, listening to these chats.

Mutual Admiration and a Few Jokes:
The Correspondence of Harry Truman with Groucho and Harpo Marx

Sixty Years Later, the Story of PT-109 Still Captivates

With Easter Monday You Get Egg Roll at the White House

Happy Presidents Day.

Happy Valentine's Day

Wikipedia in Washington: Delaware Representative Entries

Wikipedia is truly an incredible online project, where easily editable pages allow anyone to become involved in helping to maintain an online encyclopedia which has ambitions of becoming the most comprehensive ever.

A word of caution: because Wikipedia can be edited by anyone, you may come across information that isn't quite accurate. Instead of relying solely upon the encyclopedia as an authoritative resource, instead consider using it as a starting off point to conduct research.

Again, Wikipedia can be edited by anyone.

That's both its strength, and its weakness. Recently some of the edits have come from staffers from Capitol Hill offices in Washington, DC. Those edits haven't been unnoticed. Today's Wilmington News Journal takes a closer look at Delaware's role in changes to wikipedia pages with an article titled Biden staffers take Web bio entry into own hands.

In case you haven't seen them, and might even be interested in adding to the articles, here are links to the pages of Delaware's federal representatives:

Joe Biden

Tom Carper

Mike Castle

State level politicians also have entries in the wikipedia. Here's the entry for Delaware's Governor:

Ruth Ann Minner

National Federation Of The Blind take on Target

The National Federation of the Blind have brought a lawsuit against Target Corp. over accessibility issues involving their web site.

They are seeking to have the case certified as a class action suit on behalf of all blind Californians who want to use the site.

I used an accessibility validator to check the Target site and see what types of things make it inaccessible. The major problems seem to be a lack of alt text for a large number of spacer images - which are supposed to help in the layout of the design of the web site, and the use of tables to present a layout.

I also checked the delawoffice.com pages, and am happy to say that except for a couple of minor issues which we will look into, we do ok.

I hope that this lawsuit will convince web site owners to take a closer look at their own sites, and see what they can do to make their pages easier to use for all visitors.

Keep in mind that when you fail to provide alt text - even an empty alt text attribute for an image, that a screen reader will read the URL of the image, letter by letter, like this: h-t-t-p-:-/-/-w-w-w-.-e-x-a-m-p-l-e-.-c-o-m-/-i-m-a-g-e-s-/-p-i-c-t-u-r-e-.-g-i-f

Now imagine a page filled with 150 or so small images used to layout the design of a site. To use the site with a screen reader, you would have to listen to the spelling of those spacer images over and over and over. Like on the Target site...

EFF files class action suit agains AT&T

The Electronic Frontier Foundation (EFF) has filed a class-action lawsuit against AT&T.

A copy of the complaint that has been filed is available at the link above, and it charges the company with illegally eavesdropping on the phone and internet communications of people who use the company's phone and DSL services, and datamining information from people who use its services.

I have AT&T long distance. Might be time to go shopping for another service provider.

Why do non-tax paying 18 year olds get to vote in tax referendums?

This is a question posed to us from a reader, which I will begin to respond to here... at least until my assistant comes in and gets me back on my work-track.

I will interpret this question as a request for general public information rather than a request for legal advice. Legal advice requests and responses should be made in private communications between the client and the attorney - not in a public forum.

The 26th Amendment to the United States Constitution made it unlawful for the US government and the State governments to limit voting rights by age for those who are at least 18. One of the pressures to which the government was responding in 1971, when we passed this Amendment, was the Vietnam War. Many felt that if an 18 year old is old enough to be required to fight and die for his country, that he should also have the right to vote. It seems that this sentiment won the day.

Voting Rights Amendments have been consistently expanding our rights, as from the: 15th Amendments bar against racial discrimination in voting; the 19th Amendments granting of voting rights to women; and the 24th Amendment banning of poll taxes for federal elections. When our country was created, the only persons permitted to vote were white male property owners. And in some circumstances there were religious requirements for voting as well.

But it seems that land ownership is still sometimes used as a qualification for voting. In Montana, for example, there are types of voting rights that are based upon the number of acres of irrigable land that one might own (in 40 acre blocks).

Delaware School Referendum voting qualifications are set out at Title 14, Section 1077, which basically qualifies all residents of the district who are 18 or older.

Interestingly, the Delaware Constitution still has the 21 year old age requirement, but that would be ignored in light of the US 26th Amendment.

To accomplish a change in your local voting qualification laws, you should probably contact your State Senators, and Representatives, as your issue is primarly a State and local issue governed by State law... so long as it doesn't conflict with federal law. Perhaps support for such a change might be coordinated through forming or mobilizing political action groups for this purpose, as well.

Reporter Fired for Blogging

As shown by the Dover Post, we do have the right of free speech - - but there is no right to employment. As reported in the News Journal, the Dover Post fired Matt Donegan because of his blog.

Dover Post Editor Don Flood said: "He has a right to free speech, certainly... [the postings were] just so beyond the pale he could not possibly represent [the Dover Post]".

Grrr! Can't find a link to Matt's blog yet :(

It is analogous to the Cramer v. Ursuline Case, where a teacher in a private catholic school was fired because she publicly supported abortion.

In an interesting litigation strategy, Cramer claimed that The Ursuline Academy was not a religious school. That didn't go very far with the Judge.

The UK gets a Supreme Court

Under the Constitutional Reform Act of 2005, the United Kingdom will get its first Supreme Court.

This Court will handle some matters previously handled by the Law Lords of the House of Lords, and will be housed in the Middlesex Guild Hall.

Delaware wants frog lovers and volunteer naturalists

Want to help out in building the future of the State?

Delaware's Department of Natural Resources & Environmental Control (DNREC) has a number of ways in which you can get involved in the health of the State's natural environnment.

One way is to review the Delaware Wildlife Action Plan Draft Document. The State is seeking comments on this plan by January 31st. As they note there:

Today, we are in the midst of preparing for wildlife conservation in the 21st century through new funds appropriated by Congress. Known as the State Wildlife Grants program, Congress challenged the states to demonstrate wildlife conservation needs in complete terms ? not just game, sport fish and endangered species, but comprehensive wildlife conservation: all species, all habitats. That?s why the Delaware Division of Fish and Wildlife along with all of the other states and provinces throughout the country are working on developing a Delaware Wildlife Action Plan (DEWAP).

Your comments can make a difference.

If you would like a more hands-on approach to helping out, there are other ways to get involved.

A press release from DNREC is looking for volunteers for part of a nationwide citizen science project which involves people helping monitor frog distribution and populations.

Learn the calls of 13 types of frogs and complete three surveys between late February and June on a survey route that is convenient for you. Routes are available in Sussex, Kent and New Castle counties. A pre-season meeting for volunteers will be held Monday, Jan. 30 from 6:30 to 8:30 p.m. at the Aquatic Resources Education Center in Smyrna.

It is possible for teens to get involved in this program under certain circumstances, so if you know someone in high school who might be considering a career as a biologist, this might be something to bring to their attention.

DNREC is also offering Certified Citizen Naturalist Training Sessions, and also a chance for folks to help out in the restoration of a "rich woods" area near Smyrna this winter. So, if you feel like getting outdoors (pdf) with the Delaware Division of Fish and Wildlife (part of DNREC), this seems like a pretty good chance to do so. That Certified Citizen Naturalist Training sounds like fun. These opportunities seem to be centered in the Smyrna area.

A Green Infrastructure project is also looking for involvement from the citizens of the State, and they offer a wide number of ways to get involved.

The front page of the DNREC site publishes about new initiatives and projects, and news about ongoing projects on a regular basis, including links to public meetings and a calendar of events.