Who can own a tree (or a river)?

I thought that line, long stuck in my head, was from an ancient philosopher. It looks like it’s actually from Ernest Goes to Camp (1987). Still, the question lingers and the answer is probably, “it depends.”

When I travel to my wife’s Idaho, it is obvious that water rights are much different here than back east. God normally waters my lawn in north Georgia, but in eastern Idaho, grass often grows only where the land is artificially irrigated.

Idaho, and the western states, base their water law on “prior appropriation” which is often described as “first in time, first in right.” Under this system, a water right is like a right to land that can be bought, sold, bequeathed without regard to owning the adjoining land. This right is acquired, historically, by diverting (or in some matter of consuming the water) or obtaining a permit. The date this is done gives that water right holder a priority date. Those that obtained water earlier in time, get the water first, in cases of scarcity, like a drought, when there is not enough water to go around.

In the east, the system of water law is known as “riparian rights.” Under this system, the water is not owned, but is part of the land over which it runs. The owners of the land beside or below the water, can use that water reasonably (generally so that water downstream is not diminished in flow or quality).

Among riparian rights, there is a distinction between navigable and unnavigable waters. To that we now turn.

In City of Townsend v. Damico, (Tenn. 2014) a city issued a citation to trespass to Damico for carrying his inner tube from the river across private property to a public road. Damico contested the citation saying that he only sought to avoid going over a water fall, and that he had the right to “portage” around the dangerous area on land, even private land. The Tennessee Appeals Court overturned the trial court to uphold the citation. The river in question was deemed navigable in that inner tubes could float down it. As a navigable stream, “the soil covered by the water, as well as the use of the stream, belongs to the public.” Webster v. Harris, 69 S.W. 782, 784. If not navigable, then the soil beneath the water belongs to the adjoining landowner, but with a public easement on the water for commercial and transportation purposes.

As a navigable stream, Damico had a right to portage around the obstruction onto private property, but he could not simply cross the private property as he did to a public road.

Often times I tell a potential client that she may be right, but it will be more expensive to prove it, than merely paying the ticket or claim. The client often responds “but it’s the principle” which may as well be a cash register ringing. Cases like Damico may not be good for the pocketbook, but they make for good reading.

Murder, Sex and the Art of Cross-Examination

How did the “richest man ever tried for murder,” (and tried again for hiring a hit man) get acquitted? After all, there were two eyewitnesses who saw the murderer and were shot by him as well, and the hiring of the hit man was taped and recorded by the FBI. Part of the answer, (a small but very important part) was the very capable cross-examination skills of the defendant’s attorney, Richard Haynes.

This was thrillingly documented in a book titled Final Justice, by Steven Naifeh and Gregory White Smith who wrote the even more thrilling Mormon Murders. Haynes turned the murder case into a trial of the defendant’s estranged wife, Priscilla Davis, who was shot during the murder and was likely the intended target. She was a buxom blond with lots of sexual misadventures that titillated the jury and turned them against her. She was also very clever herself. However, Haynes started the cross by asking her questions about some very awkward sexual and drug habits which the witnessed fudged, hoping that would be the end of it. Instead, Haynes had vast evidence showing that she was lying about her drug use. From then on Haynes would ask about other awkward situations, which he had made up, but from then on, the witness’ denials fell on the deaf ears of the jury. The jury saw her as deceitful and from then on, they gave her no credibility. The book details the circus that ensued. Among other things, the defense counsel would scour local bars to find witnesses, some were likely paid and were out-and-out liars. But the jury acquitted Cullen Davis after an 8 month trial.

Haynes was evidently a masterful storyteller and had an incredible presence in a courtroom. He used these gifts to get a jury on his side. Not many attorneys can do this the same way, Bobby Lee Cook comes to mind as an exception.

The One Thing to Know About Cross-Examination

Instead, most lawyers need to know one rule when it comes to cross-examination. Which is: ask ONLY leading questions. Do not start with “state your name.” Instead, say “your name is Smith, isn’t that true?”

The goal of cross-examination is to have the attorney testify and the witness just affirm. (So the attorney must know the answers to the questions ahead of time.) When asking very basic questions at the beginning, asking in a leading format puts the witness on his or her heels, afraid to offer up much voluntary material (which will not be beneficial to the cross-examiner). If the witness does not answer “yes” or “no,” the attorney should object and ask the court to inform the witness to answer “yes” or “no.” At this point, the witness is likely to submit to the show.

In Hayne’s case, he didn’t even need to know the answers to the questions. By making the witness out to be a perverted liar from the beginning, he could say anything and the jury believed it over the denials of the witness. That’s not a good thing in the pursuit of justice, but it makes for an interesting read.

So is all fair in love and war?

Peacemaking invites confrontation - Stockholm City Hall as object lesson

Not many people like to be told they are wrong, even if it's good news. Thus, settling disputes is not often like the end of Rocky IV where Rocky ends the cold war thru an impassioned speech and good sportsmanship.

More often, true peacemaking is finding a creative solution, and resisting the binary choices offered by either party in conflict. In other words, telling both sides they are wrong, but in a constructive way.

I recently, on the advice of the Rick Steves show, toured Stockholm City Hall. The Hall is very impressive, constructed only by Swedes about 100 years ago. Above and to the side of the Blue Hall, where the Nobel Prize ceremony is held every December, is the gold room. This room is completely covered in gold mosaic. When the building was being constructed, the designers really wanted gold mosaic even though it wasn't a Swedish art form. They found a Swede to do it, but he was very inexperienced, and not given much time. This is fabulously shown at the end of the hall where the wall was not as high as thought, and as such the patron saint of Stockholm's head is missing.

On the other end, is the Queen of the Lake, representing Sweden. On her left is the west, energetically shown with the US flag, Statue of Liberty and Eiffel Tower.

On her right, more awkwardly, is the East with characters the artist felt were representative. The artist was trying to show Sweden as the bridge from west to east, and as peacemaker. Instead, the Queen of the Lake looks like the Queen of the world. Not to mention, she has big hands, big feet, masculine shoulders and bug eyes. The whole wall was almost torn down due to intense public criticism.

I think it was Lincoln that said the middle ground is often the firmest. However, it takes a strong neutral to maintain it. What do you do when both sides say you are biased, ignorant of the situation, inexperienced and out of your league?

With the Queen of the Lake, the artist later gave a pretty persuasive accounting of his Queen. He defended himself arguing that such an important peacemaker needed big eyes to monitor the situation, strong feet to maintain her ground and broad shoulders to carry such burdens. May we all have those attributes as problem solvers.

P.S. I also learned that Sweden does not have any law against the "unauthorized practice of law." Thus, you can hire anyone to represent you in court, lawyer or not (although it seldom happens). You also have to practice for 5 years, and represent the public for 3 years after passing the bar to call yourself an "advocate."

The Glamorous World of International Arbitration

“Here’s the dilemma. You need 15 more minutes of argument past the time allotted for the arbitration. You’ve heard thru the grapevine that the arbitrator has tickets to the opera (La Scala) and is not going to stay late. What’s your argument?”

That was one of the questions posed at the ICCA conference in Miami, Florida, I recently attended. (The answer is to bring up due process).

While the words “international arbitration” may not make everyone’s heart flutter, it is the method of choice for many big dollar international business disputes. For me, there is a technical proficiency necessary that is very attractive.  As one of the presenters mentioned, it’s more Ronaldo than Messi (more hard work than talent, although both are necessary). Besides that, what’s not to like about traveling to Mauritius, Dubai or Paris and sorting thru muli-million dollar disputes?

The attraction to business is that domesticating and enforcing a judgment from a foreign nation can get long, messy and expensive. Conversely, enforcing an arbitration award is pretty straightforward. Thanks to the New York Convention of 1958, the process consists merely of filing a petition to confirm in the appropriate federal district, with English translation. Once confirmed, the award is entered as a federal district court judgment and is enforceable in the same way.

The Miami meeting came after the main ICCA conference and consisted of about 40 participants from all over the world.

Here are just a few fascinating things I pondered/learned:

How to get a decision maker to think he came up with your answer himself: Sydney Kentridge (who Mandela said was the world’s best lawyer) in making his final argument to the judge, would say he had 7 points. He would then go thru 6 points and say, from these 6 points, the 7 is pretty obvious. Then he sat down and let the judges divine the 7th point. Very gutsy, but it worked for him.

In India, evidently the court system is so back-logged that it would take 300 years to clear out the current cases. It is also evident that Indian attorneys are tired of hearing this statistic. Nonetheless, an Indian advocate has a very short time to make a very earnest plea to a court to even get her client’s matter heard. Because of this, demonstrative movement and impassioned speech becomes necessary and expected.

With advocates from such varied parts of the world coming together, what is the appropriate dress (Brooks Brothers for men; for women, you got me)? How do you address the tribunal (“Mr. __ or Professor __” as opposed to “your honor”)? What do your briefs look like (inter alia, executive summaries are very important, be mindful of being so “complete” that you dilute your arguments)?

Also, how arguments are made to the tribunal becomes a dilemma. American ways tend to creep into everything and an American style cross examination can become more of a show than a substantive effort to discover information. Many tribunals do not like this. Some of the participants mentioned Americans’ tendency to use terms like “fraud” which are an egregious sin in most places, but might be considered puffery coming from an American attorney.

Practicing international arbitration is purely aspirational to me at this point. But there’s no doubt that it is inspiring and motivating to be so consumed with new, big ideas and to hang around with bright people from all over the world. As I came back to the real world, which often seems to be fighting over pots and pans (very important to those involved, mind you) I remember how exciting and diverse the practice of law can be.

The most epic Coke

That's Edward Coke, of course, and it's pronounced "cook." I just finished The Lion and the Throne: The Life and Times of Sir Edward Coke : 1552-1634 and highly recommend it.

In her 1957 book, Catherine Drinker Bowen  makes the old judge and lawyer out to be a very real person. Coke was one of the epic jurists of English and common law. In his early years, he was one of the attorneys in Slade’s Case and Shelley’s Case of 1579. (What is the rule in Shelley’s Case?)

He was a contemporary of Sir Walter Raleigh, John Donne, William Shakespeare, King James, Queen Elizabeth, Oliver Cromwell. He prosecuted nobility and Guy Fawkes (of the Gunpowder Plot to blow up Parliament). He was a big deal and he knew it. He once used his power as judge to chase away his daughter’s suitor. He could be petty in court and would grandstand at times to impress his queen.

He could have bought the world a Coke with the money he had.

What is most fascinating in the book to me is the see how our common law has developed from these roots. It was a much different time: the average lifespan in the late 1500s in London was eight years. Torture was not allowed by law but could be imposed by the queen. Solicitors (but not barristers) were held in very low regard as they were seen as shysters using their knowledge of the system to manipulate and set dissension among otherwise peaceable people.

As now, judges and attorneys used all legal tools to deal with changing times. Often, these legal tools were stretched to the brink of cynicism. In Coke’s day, there were 50 offenses that carried the death penalty and judges bent over backwards to give acquittals. Some of these crimes were not uncommon and the great distinction was who got caught (which was determined by who one’s enemies were).

In the day, juries were not thought of as factfinders, but as witnesses. They had direct knowledge of the case and were expected to act as such. If they decided they couldn’t make a ruling, they filed an “ignoramus” which meant they were ignorant of the truth. (This was a grave embarrassment to the prosecutor who selected the jury in the first place). A play entitled “Ignoramus” was composed mocking Coke, of all people, and that is where our current annotation of “ignoramus” as a fool, comes from. It was his very own alma mater that presented the play, and Coke didn’t deserve this.

"Eg-no-ra-moose" as some say

Paranoia about “outsiders” abounded including the Catholics, now out of power in England, and the Spanish, who were in the ascendant. In 1500s Catholics couldn't swear on Protestant Bible (nor could Puritans). Catholics were persecuted and feared lest they take power. The idea was that the English sovereign would be replaced by a foreign ruler (the pope). Relatedly, Catholics were often hauled into court with conspiracy or treason charges. Often, the accused would resort to “equivocation” wherein he would not lie, but on the other hand would not tell all, or would refuse to answer. At the time, this caused great consternation as swearing an oath on the Bible put one’s soul at risk and the affiant was expected to tell the whole truth, whether directly asked or not. Then, as now, foreign law was distrusted, as it undermined the crown. Coke was very suspicious of such “premunire.”

Parliament and the new King James did not get along. So the King used his equity powers to ignore the common law (via the Court of Chancery). The King had the power to dissolve Parliament when it was about to pass something that didn’t suit him. On the other hand, Coke, who was speaker of the house, used friction with Spain as leverage to make the king acquiesce to Parliament’s power. After all, only by the taxing power of Parliament could the king raise revenue without leading to riots.

Coke is remembered to the ages due to his persistence in adhering to the rule of law instead of the whim of the king. In Bonham’s Case, he went out of his way to hold the king was subject to the law. This, among other things, led him to imprisonment at in the Tower of London. The book makes accessible this epic life.  Great read.

Attorneys would rather be feared than loved?

A 2013 poll found that only 18% of Americans felt that lawyers contributed to society’s well-being, the least of the occupations surveyed. Many blame this sentiment on attorney advertising.

However, lawyer TV ads are supposed to increase the overall administration of justice as the US Supreme Court stated (see below).

An epic 2 Minute Halftime Commercial written and directed by Jamie Casino. The spot features Jamie's brother Michael who was gunned down with his friend on Labor Day 2012. The story reveals how Savannah's Chief of Police, Willie Lovett, deceived the citizens of Savannah after four homicides took place Labor Day weekend.

This ad, for whatever else may be said, is epic. While I would never do it myself, I’m glad it was made. As catchy as it is, two minutes of Super Bowl advertising is costly and it may not bring in enough new business to justify its cost. I want to believe it was made for the love.

Some attorneys take a more abstract approach.

I think it’s safe to say that this ad would turn off people in general. But someone wanting an attorney to fight for her against a criminal charge would see it in a different light.

In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), SCOTUS ruled that an outright ban on legal advertising was unconstitutional. The Court found that adverting informed the public, improved the administration of justice and need not have a negative effect on the professionalism of the bar.

Most attorney ads on television are for personal injury, medical malpractice and product liability actions where attorneys tend to make a good return on investment. (Otherwise, we may have never heard of a bladder sling or a vaginal mesh.)

More recently, Television commercials offer a steady stream of mesothelioma ads, many presenting themselves as support groups. But in the small print, these commercials are actually attorney ads leading the caller to call a firm and hopefully sign on as a client. Mesothelioma/asbestos ads have become so pervasive, that even web clicks (like Google AdWords) can go for $60 each or amazing, up to $900.

This is because each successful mesothelioma claim is worth about $1.5 to $2 million.

Recently, the plaintiffs’ bar has taken heat for much of the asbestos/mesothelioma litigation.  In In re Garlock Sealing Technologies, LLC (No. 10-31607), the bankruptcy judge blasted the plaintiff’s attorney for misleading the court and the jury about where the plaintiff had been exposed to asbestos. The plaintiff had been exposed to asbestos from many sources but presented to the court that only the sole defendant was to blame. The plaintiff was apparently going after each offender one at a time.

This kind of thing doesn't lend itself to good relations with the public at large. Commentary on the case condemns the poor ethics of the plaintiffs’ attorneys. But the case may be made that these attorneys are doing what it takes to get good results for their clients, even though it enriches their own bottom line. After all, isn't it an attorney’s role to be the bad guy when need be?

What ethical issues do you see in a commercial presenting itself as an information line for an injury when it's actually an attorney referral?

Sovereign Citizen Defense: “Not guilty because my name is in all caps”

Pity this poor probation officer. Probationer James Earl Davis (as distinguished from JAMES EARL DAVIS) insisted that if his probation officer sent him another letter, that he would charge the officer $500,000 for each time he used his copyrighted name. Thus, the probation officer should just leave him alone, and not worry about whether he was violating his probation. United States v. Davis, (11th Cir. 2013).

Likewise, it can’t be proper for an unrecognized sovereign, like a county,  to impose taxes on allodial land (absolute ownership of land not subject to any superior). State ex rel. Williamson Cnty. v. Jesus Christ's Church, (Tenn. App. 2011).

As illogical as these arguments may seem, they have been tried and tried, to no avail. The philosophy behind these arguments comes from the “sovereign citizen” movement.

A “sovereign citizen” is sovereign over herself, and subject to no one.

At bottom, a defendant pursuing a sovereign-citizen strategy claims that a federal court has no jurisdiction to try him for the federal crimes with which he is charged. The defendant purports to rely heavily on the Uniform Commercial Code ("UCC"), admiralty laws, and other commercial statutes to argue that, because he has made no contract with the Court or the prosecutor, neither entity can foist any agreement upon him. The criminal code is apparently not one of the groups of statutes whose validity the defendant will acknowledge. Accordingly, the defendant contends that he cannot be found guilty of any violation of federal criminal laws.

The sovereign-citizen defendant typically files lots of rambling, verbose motions and, in court proceedings, will often refuse to respond coherently to even the simplest question posed by the Court. Each question by the judge is volleyed back with a question as to what is the judge's claim and by what authority is the judge even asking a question. When referred to as the defendant or by his name, the defendant will frequently indicate that there is no proof that he is the defendant, but that instead he is a third-party intervenor.

United  States  v.  Perkins, (N.D. Ga. 2013).

A sovereign citizen typically believes that most people have been tricked into becoming “citizens by entering into ‘contracts’ embodied in such documents as birth certificates and social security cards.” Cooper v. United States, (C.C. 2012). The contract creates a legal fiction, an ens legis (a creationof law, like a corporation), which is the person’s name in all capital letters. This “citizen” and her property is then responsible for the national debt and subject to US tax law, etc.

How to Free Oneself from this Oppression

One method of overcoming this ens legis is to file a UCC financing statement naming herself in all caps as the debtor, and her real name (first letter in caps) as the secured party. This doesn’t actually work, of course.

Several regional cases illustrate the frustrating and futile nature of this strategy:

In United States v.  Degaule, 797 F.Supp.2d 1332 (N.D. Ga. 2011), the defendant required officers to fill out questionnaires and sign an oath before speaking with her. The questionnaire sought personal information of the officer, and then affirmations that any information from the defendant would be protected and not used against her, including a promise that the officer would “uphold the U.S. Constitution.”

In Cooper v. United States, (C.C. 2012), the court had great difficulty in determining what a Texas federal inmate was asking for but denied his petition for governmental release of a ship and a $30 billion debt.

In State v. Williams, (Tenn. App. 2012), a criminal defendant argued he had fundamental freedom to travel without license. He argued he couldn’t be convicted of driving on a suspended license as he never had a Tennessee license and didn’t want one. Further, he was “not traveling in commerce” and therefore no state could impose any driving regulations on him. The defendant referred to himself as the "Attorney in Fact" for the "legal fiction" of "Anthony Troy Williams."

In Ralph v. State, (Tenn. Crim. App. 2012), a defendant was appointed counsel but, just before trial, asked the trial court to allow him to proceed pro se. He was allowed to represent himself but appointed counsel was instructed to sit with him during trial (“hybrid representation”). He was then convicted of drug charges and sought to appeal based on ineffective assistance of counsel. The defendant was upset that trial counsel wouldn’t do the things he wanted done. He complained that counsel wouldn’t ask deputies certain questions at trial, even though he could ask them himself. He also complained counsel wouldn’t sign a contract with him. That contract would have required trial counsel to pay the Petitioner $1,000,000 "in silver coins" for every violation of the Petitioner's "civil rights" that the Petitioner felt occurred during the prosecution of this case.

Is this just a trick/ foolish belief, or is there a genuine argument that citizenship and its attendant responsibilities shouldn’t be imposed on us?

Citizen?

In an old Tennessee case, Ford v. Ford, 26 Tenn. 92 (1846), a farmer had bequeathed to his slaves their freedom. The farmer named his two sons as executors. The farmer’s children wanted none of this and even tried to destroy the will. That failing, the executors refused to probate the will. The slaves themselves presented the will to the local court (Washington County, around Johnson City) for probate. In fact, the slaves couldn’t present the will themselves but did it through a “next friend” (a legal way for someone to bring an action for someone who cannot legally do so, like a child or an incapacitated person). The children contested the probate on many grounds including forgery, incapacity on the part of the testator (the maker of the will), and that the slaves as non-citizens had no rights to bring the court action. Nonetheless, a jury found for the slaves that the will was valid. On appeal, the Tennessee Supreme Court found that the slaves had the right to propound the will as “the laws under which he is held as a slave have not and cannot extinguish his high-born nature nor deprive him of many rights which are inherent in man. Thus while he is a slave, he can make a contract for his freedom, which our laws recognize, and he can take a bequest of his freedom, and by the same will he can take personal or real estate.”

            This was kind of amazing at the time, in most situations the slaves would have been screwed – think “12 Years a Slave" or the Scotsboro Boys. After all, the slaves had to find a “next friend” willing to confront local biases, post a bond, and find people in authority willing to listen. All of this in the deep south.

Twelve years later, the Supreme Court of the United States held very differently. In Dred Scott v. Sandford, 60 U.S. 393 (1857), Mr. Scott, a slave, went to court and made a compelling case for his freedom based on his “owner” having lived with him in free states. He was denied in state court based on a technicality and then again based on a politically motivated decision. He appealed his case to the United States Supreme Court. In a 7-2 decision, the Court held that Mr. Scott could not sue in federal court as a negro did not have the “rights, and privileges, and immunities” granted to citizens” including the right to bring suit.

In a recent case, Lucas v. Jerusalem Cafe, LLC, (8th Cir. 2013), a restaurant owner was sued by some of its employees, unauthorized aliens, for their pay. The restaurant argued that that the plaintiffs lacked standing as they were illegally in the country and unauthorized to work. Considering this history, should people in the US illegally be limited in their ability to bring lawsuits in court?

If you just appeared in America, what would you need to know about our legal system?

We give a monthly "intro to law" talk at Bridge Refugee Services here in Chattanooga to brand spanking new arrivals. For about 40 minutes we go over the following topics:

- Local courts and what they hear;

- Where to get help and not being too embarrassed to ask;

- How to avoid scams;

- Very basic rules of the road, using car seats (as most can't drive yet but will);

- Dealing with the police;

- Domestic violence;

- Divorce;

- Children: truancy, corporal punishment;

- Animals (taking care of pets, not butchering own meat, etc.);

- Religious freedom to one's way of dressing (head scarves);

- Understanding contracts (if you don't speak English well);

- Housing - dealing with landlords.

What else might someone need to know who is brand new to the US and its culture/legal system?

Great Reference for Lease Drafting

Here's a great resource for use when drafting leases. It was prepared by Nashville attorney, C. Dewees Berry, IV:
http://tnrelaw.blogspot.com/p/avoiding-lease-drafting-pitfalls.html