Tuesday, October 22, 2013

Bicycle Accident Leads to Lawsuit against Target Inc. and Pacific Cycles, Inc.

I love bicycles.  I have quite a few bicycles.  For me the correct ownership formula for bicycles is your current stock +1.  Usually the acquisition of another bicycle is a happy event.  But not always.

My client was 11 years old when her parents purchased a new Schwinn bicycle from the Target Store.  The store assembled the bicycle.  The family eagerly picked up the bicycle.  It was a smaller mountain bike, shiny and sparkly.  It had fenders mounted on it to keep it clean.  It was very smart looking and the little girl was very pleased.

The little girl use the bicycle without incident until one day several months later she was pedaling on her way home.  While she was just riding along the front fender became disconnected from the front forks.  When the fender became disconnected it fell down forward onto the front tire.  When it made contact with the front tire it grabbed the front tire and locked up the wheel.  When the wheel locked up the little girl was pitched over the handlebars and slammed onto her face causing significant obvious facial injuries, dental injuries and less obvious other injuries.

An investigation into the bicycle revealed that the fender was held on by a regular nut.  Things that move such as bicycles vibrate.  Things that vibrate tend to loosen.  The customer does not know this but the bicycle company certainly does.  They can take steps to prevent critical parts from vibrating loose.  Instead of using a flat washer they could use a split washer.  Better yet, instead of using a regular nut, they could use an aviation lock nut.  An aviation lock nut is not just for airplanes.  Many bicycles have them installed.  An aviation lock nut has a small nylon insert which grabs the threads of the bolt and keeps it from loosening.  This bicycle did not have any sort of proper device to keep that fender on.  Further, many fasteners are kept on by torquing them to the proper tightness.  Using a torque wrench establishes that the fastener is neither too tight nor too loose.  When the bicycle was assembled by Target Incorporated there is no evidence that they used the proper assembly tools.

An aviation lock nut probably costs five cents more than a regular nut.  I can't believe that the manufacturer would be so cheap as to risk the safety and well-being of their customers in order to save a few pennies.

I made a claim upon both the manufacturer as well as the retailer requesting they compensate my client for her terrible injuries.  I thought I laid out her case in a logical and persuasive manner.  I presented the evidence of the injuries.  Without explanation they denied the claim.

My client recently filed suit claiming that both the manufacturer as well as the retailer are liable for injuries under a series of product liability, negligence and breach of warranty.  The case is in early stages of litigation.  In a strict products liability case, the plaintiff does not need to prove that the manufacturer was negligent.  If the plaintiff proves that the product is defective in some way, the manufacturer is strictly liable for the harm.  In my mind, this is a flagrant mistake and the bicycle was defective in a significant way.  I will update how this case turns out in the future.

Robbery Charges Dismissed (wait a minute, didn't I just read that?)

My different client was charged with robbery.  The victim claimed that my client as well as several other men took her iPhone at a party using force.  Several days later the victim was again accosted by the same or a similar group of men and more items were stolen.

Interestingly, her iPhone apparently appeared in Washington DC on some sort of electronic phone market.  The Metropolitan police contacted Montgomery County and they began developing a case.

In this case I had access to a very engaging and disarming investigator.  The investigator was able to find the victim and take a lengthy statement. It seems that my office was able to speak to the victim before the prosecutor did.  This is important because the interview can have an effect on the memory.  My investigator is very neutral and asks open-ended questions trying to get to the bottom of the matter in a fair and balanced way.  Sometimes an interview can be slanted and the witness's memory pushed into a direction it would not normally go.The victim in her statement had a poor memory of the events and was certainly not identifying my client with sufficient detail to prove that he was involved beyond a reasonable doubt.

The prosecutor to her credit saw the problems with the case and dismissed the charges.

When you hire your attorney it is often worthwhile to find out if the law firm has an investigator available.  The investigator may cost additional money but is often worth the expense.

Sunday, October 13, 2013

There is sometimes more than one side to a story, the prosecution should have listened

My client, a Maryland licensee, was stopped in June of 2013 for expired registration.  He explained to the officer that his license had been suspended in the past.  The officer ran a license check and concluded that my client had a license that was revoked in the state of Maryland.  The officer charged my client with driving without a license, driving while suspended and driving while revoked.

These are fairly serious traffic charges.  The maximum penalty is one year in jail and $1000 fine as well as 12 points on your driving record.

My client came to me and I looked at his citations.  He came to me less than one day before the trial date.  I had little to work with but my client explained that although he did not have a physical license at the time he was stopped in June of 2013 he had been to the motor vehicle administration and had applied to have his license reinstated months beforehand.  A few days before the stop he explained that he had called the motor vehicle administration and they advised that his license would be approved.  Based on that knowledge he began driving and we had the problem above.  Several days after he was stopped he did receive a letter from the motor vehicle administration advising him that he could go and pick up his license.

I called the prosecutor the day before trial and tried to explain that my client had taken care of the situation and perhaps we could resolve the case by him pleading guilty to driving with expired registration (a fine only, no points, no jail).  The prosecutor told me that in the police report my client admitted that he knew his license was suspended.  The prosecutor rejected my proposal so we came to court.

In court the prosecutor wanted my client to plead guilty to the offense of driving while suspended which in this case carried one year in jail possibility and 12 points on his license as well as a $1000 fine.  I am duty-bound to make whatever offer I get from the prosecutor but I did not recommend it to my client.  I am also duty-bound to represent my client zealously.  Of course I reviewed the police report wherein my client allegedly confessed to driving on a suspended license.  The report did not say that at all.  What my client admitted to the officer was that he had been suspended at some point in his life.  Not that he admitted to being suspended while driving at the time the officer pulled him over.  The distinction is like the difference between lightning and lightning bug.

The case was called for trial and my client pled not guilty.  The prosecutor put on the officer who testified as to why he stopped my client.  The officer on the stand could not state that my client admitted to him that he was driving while suspended when he was stopped by the officer.  The officer put into evidence my clients driving record which contains some problems for the prosecution.  After my client was initially revoked for an alcohol evaluation some years ago the notice of revocation was apparently mailed to his home address.  The driving record indicated that although the notice of revocation was mailed it was returned by the postal authority.  What that means is that my client may not have known about the revocation.  This is important because one of the elements of driving while suspended or driving while revoked is that you should know that you are indeed suspended or revoked.  You cannot like the ostrich bury your head in the sand and ignore the obvious facts of your life but in this case the prosecution could not prove that he actually knew that he was suspended or revoked at the time of the driving.  Further, the driving record did not demonstrate that my client was suspended at the time of the stop, he was simply revoked.

The burden is on the prosecution to prove every element of every charge beyond a reasonable doubt to the trier of fact.  The prosecution charged my client with driving while suspended in several forms.  They had no evidence to show that he was suspended.  After the prosecution rests, the defense has an opportunity to move for judgment of acquittal and argue that the prosecution failed to make a prima facie case as to the charge.  This motion for judgment of acquittal applies to every crime from murder down to a speeding ticket.  In this particular case there was no evidence of a suspension and the judge dismissed the charges.  The only charge remaining was that of driving while revoked.

I put my client on the stand and he explained that he had sent in his reinstatement application months beforehand.  Several days before he was stopped he had called the motor vehicle administration who advised him that he was once again eligible to drive.  Now I have found that people tend to hear what they want to hear (including myself).  But the motor vehicle administration probably told my client was wait for their letter and then he can go to the motor vehicle administration and get his physical license.  The news he heard was better than the news they actually gave.  Nonetheless, the judge was impressed with my client's testimony and found him to be credible.  The judge thought that my client may have jumped the gun but very importantly the judge thought that my client legitimately thought that he was eligible to drive.

My client was found not guilty of all the charges.

I have been representing people with traffic problems over the past 27 years.  Experience can help when picking your attorney.

Robbery Charges Dismissed

My client and two others were charged with armed robbery as well as conspiracy.  The victim claimed that my client held a knife to his throat and the other codefendants used physical violence and assisted in the robbery and stole various items.  The prosecution's initial evidence was the testimony of the victim.  There were no obvious eyewitnesses.  The prosecution began building their case in a rather sophisticated but a more and more normal fashion in today's technological age.  They used the cell phone signals that were supposedly being emitted from the three codefendants cell phones to locate their position at the time of the robbery.  The prosecution concluded that at least two of the cell phones were close in distance and time to where the victim claimed that the robbery occurred.

My client advised that he was not at the scene of the robbery but was rather with his girlfriend 10 miles away.  I began using the tools that were available to me in this case to establish my client's alibi.

I interviewed the girlfriend at length to get an itinerary of what they did that day.  Her recollection of the day was very detailed.  They were quite a distance away.  They used public transportation to get there.  They used an additional shuttle once they were there.  They went to a restaurant and a doughnut shop.  Again in today's technological age it is not difficult to leave an electronic trail.  They used public transportation to get into Washington DC.  I asked her to produce the smart card which would be date stamped as well as timestamped.  When they were on the shuttle bus I asked for camera footage from the shuttle bus.  The shuttle bus did have a camera but it was not running in this particular case.  I asked for receipts from the restaurant as well as the doughnut shop.  I asked the girlfriend to go down and check and see if she could remember the waiter and if the waiter would remember them.  Besides going on the defensive and I went on the offensive.

I hired an investigator to speak with the victim.  It took some doing because the prosecution did not want to give up the identity, address or telephone number of the victim but we were able to find the victim nonetheless.  My investigator is  a young woman and she is extremely disarming.  I have had much success with her getting the statements from victims and I recommend her highly.  She took a statement from the victim which was not consistent with the statement that the victim gave to the police.  She was also able to find out that the victim spoke with either family members or friends.  The statement that the victim gave to these people was different again from the other statements.

I did something also unique in my practice to date in this case.  It's normal for me to contact the attorneys of the codefendants and have a general idea of what is going on in their cases.  In this particular case I created a Google doc so that we could share information and be more efficient with our resources.  For example, I  shared what my investigator found out with the other attorneys.  Through this collaboration I was able to find out that the victim had show off pictures in Facebook and other social media.  In the show off pictures it shows the victim pointing a handgun at the camera, and otherwise mugging with a handgun.  I wasn't sure what to do with his information so we never provided it to the prosecutor.  Nonetheless, it was pretty clear that the victim was an apparent troublemaker.

By the time this case was ready for trial the prosecution began to realize that they had problems with their victim and consequently with their case.  They ultimately dismissed the charges against my client.  As a footnote, I thought this was very ethical of the prosecutor.  In her opinion she found it to be ethically questionable to prosecute the case where her victim gave several diverging stories about how the robbery happened and what was taken.

When you hire an attorney to represent you, it's worth asking what resources are available for your case.  H

Wednesday, October 9, 2013

Circle Treatment Center PC and Group Presentation

I have been practicing law for 27 years. One of the advantages of acquiring gray hair is invitations to speak before certain groups.

Circle Treatment Center, PC in Gaithersburg Maryland asked that I address their students regarding drug and alcohol education. The teacher there seemed well-informed and interested in his students. He was enthusiastic. I was able to speak to the students about the consequences of drinking and driving and how it affects their lives in the court system and their drivers license.

I spoke for probably one hour dealing with a chronology of the usual case which is the initial stopping by the officer through what happens and what possibly may happen by the time the case is over in the court system as well as for the motor vehicle administration.

Circle Treatment Center PC was kind enough to send me a letter of appreciation. The letter was very nice but it was also somewhat humorous. I quote:

"The information that you covered was precisely what the class needed. The presentation could have been better. As a substance abuse program, we feel it is imperative that the information is conveyed in an accurate and understandable manner, which your presentation undeniably accomplished"

I suppose my presentation could have been better. Do you think they meant to write "could not have been better"? Perhaps my ego is bigger than I think.