On The Merits
The India-based technology outsourcing giant Infosys recently agreed to pay the U.S. government $34 million in a record civil settlement for what prosecutors called “systemic visa fraud and abuse.” The company, while admitting nothing, was accused of bringing temporary workers from India into the U.S. to fill jobs here illegally, using mere business visitor visas. Those are cheaper and far easier to obtain than the longer-term employment visas the law requires. Companies that get away with such practices can pay the prevailing local low wage, undercutting competitors and keeping U.S. citizens out of jobs.
Infosys’ alleged abuses were undone by one man: Jack Palmer, an American employee of Infosys in Alabama. Punished, harassed and sidelined by Infosys executives after he quietly complained through internal channels that he had witnessed widespread visa fraud, Palmer filed a whistle-blower lawsuit.
Whistle-blower protections aren’t available in every Western country. Thankfully, the U.S. justice system is often well-equipped to defend ordinary citizens from powerful interests who use that power to perpetuate wrongdoing and silence their truth-telling critics.
And what will Palmer get as a reward for his bravery, isolation and months of self-doubt over his decision to make Infosys abide by the law? People familiar with the case have told the media that he could receive as much as $5 million from the Infosys settlement. That, too, is justice.
Posted: 12/6/2013 12:00:00 AM by On the Merits Editor | with 0 comments
Just call me “Captain Justice.”
That’s how fortuitously-named defense attorney Drew Justice responded when prosecutors asked a Nashville judge to stop Justice from calling them “the government” while representing a criminal charged with attempted burglary.
Assistant District Attorney Tammy Rettig wrote in her motion: “The State believes that such a reference is used in a derogatory way and is meant to make the State's attorney seem oppressive and to inflame the jury.” She suggested she be referred to as “General Rettig,” among other titles – “General” being a common title for prosecutors in some states.
Riffing off the military concept, Justice countered with his own motion, suggesting “Captain Justice” might be the appropriate way to address him. Further, if the court sided with the prosecutor, he wrote, his client should not be called the defendant, but “Mister,” “the Citizen Accused” or “that innocent man.”
This entertaining bit of courtroom hijinks raises a question: At what point did it become derogatory for prosecutors in court to be referred to as “the government?” The term “the government” used to be a sign of strength and power against a lowly criminal defendant. It was sign of great respect. But the country’s political landscape has changed in the past couple of decades such that “the government” has a different connotation now, especially in conservative Southern states.
Appropriately, though, whatever the politics of the judge in Tennessee’s Williamson County Circuit Court, he seems to have stuck with tradition. The word “government” is not derogatory, so said the judge in denying the prosecutor’s motion.
Posted: 12/4/2013 12:00:00 AM by On the Merits Editor | with 0 comments
Patent law once was considered a sleepier realm of the law, where only engineers and the like dared tread. But the proliferation of technology, a series of record-setting patent infringement verdicts, and an increased corporate focus on the value of intellectual property have combined to make patent law more mainstream than ever. Also contributing to patent law’s high profile are a number of recent lawsuits filed by so-called “patent trolls” against mom-and-pop businesses for alleged patent infringement violations tied to the use of a particular copy machine or phone system.
These lawsuits, which aim to extract settlements from small companies that don’t have the resources to mount a full-scale patent defense, have resulted in critical comments from President Obama himself, news coverage from the major television networks and the country’s largest newspapers, and general outrage among the defendants and the public alike. Now, both houses of Congress are proposing changes to patent law to combat the trolls, but not everyone believes such a fix is needed.
One well-placed dissenter is the Hon. Randall Rader, Chief Judge of the U.S. Court of Appeals for the Federal Circuit. Judge Rader recently told a roomful of patent attorneys during the Eastern District Bench Bar Conference in Plano that Congress essentially needs to cool its jets and let the justice system do its job.
"Because I have confidence in the ability of the judiciary to address these issues in a more flexible and thus just manner, I consequently encourage the legislative branch to proceed with great caution in attempting to solve specific and evolving problems with sweeping definitions,” Judge Rader told the group.
The Chief Judge said he knows exactly how the judiciary can help resolve the patent troll issue, including dismissing patent cases that clearly have no merit and relying on existing provisions in patent law that gives judges the ability to shift litigation costs to those who file baseless claims.
Judge Rader is right. Our civil justice system grants federal judges many powers that allow them to make sure the system works as it is intended, and those judges can and should embrace this responsibility without the intervention of Congress. Sometimes the answer to a perceived legal problem isn’t to rewrite the law, but rather to permit the courts to do the job they are there to do in the first place.
Posted: 12/2/2013 12:00:00 AM by On the Merits Editor | with 0 comments
In the latest debate about how to keep jurors impartial in the Age of Google, score one for the Internet.
In a California case heard in Santa Barbara County Superior Court, Judge Thomas Anderle ordered plaintiff’s attorney Simona Farrise to take down two pages from her website that promoted her success in cases similar to the one she was litigating, at least for the duration of the trial. The court was concerned that jurors may ignore his instructions to jurors that they not do any independent research and see Farrise’s website.
However, the 2nd District Court of Appeal ruled that that action went too far – even when considering that the attorney’s website was commercial speech, subject to lower First Amendment protection.
"The trial court properly admonished the jurors not to Google the attorneys and also instructed them not to conduct independent research. We accept that jurors will obey such admonitions," wrote Justice Steven Perren in Steiner v. Superior Court (Volkswagen). "It is a belief necessary to maintain some balance with the greater mandate that speech shall be free and unfettered."
It’s a difficult balance, but the court made the right call. The internet isn’t going anywhere, and judges won’t ever be able to remove all prejudicial information by judicial fiat. Better to rely on the authority and respect of individual judges to impart upon jurors the significance and solemnity of the task they are undertaking.
Posted: 11/27/2013 12:00:00 AM by On the Merits Editor | with 0 comments
In Florida, politics seems to be interfering with the justice system.
Gov. Rick Scott keeps rejecting lawyers chosen by The Florida Bar to serve on the panels that screen applicants for judgeships. It’s a departure from the past. According to the bar, Scott’s predecessors, Charlie Crist and Jeb Bush, never rejected its nominees.
“It’s very frustrating,” Bill Davis, a Tallahassee litigator and a member of the Florida Bar Association’s board of governors, told The Wall Street Journal Law Blog. “We submit the names of highly qualified individuals who go through the time to fill out an application as required, and they all get rejected. It makes it very difficult for us to recruit additional lawyers.”
The Tampa Bay Times reported that lawyers who are registered Democrats, those aligned with left-leaning groups, or those who promote themselves as trial lawyers appear to have little hope of being on a judicial nominating commission.
The governor’s general counsel, Peter Antonacci, told the newspaper that these attorneys are more likely to view the Constitution as a “living” document that evolves along with society’s shifting values, which is at odds with Scott’s beliefs.
A spokeswoman for The Florida Bar said the group respects the governor’s right of rejection and will continue to submit new nominees.
As we’ve noted before, judging and legislating are not the same thing. Politicians may want judges who will always rule the way they want, but that’s not judging. The good judge will keep an open mind, put aside personal beliefs and apply the existing law to the facts before him or her.
The media rarely mention it, but few cases actually involve constitutional or politically loaded issues. Most day-to-day disputes involve mundane choices, such as the true meaning of the statutory language or whether it was meant to apply to a novel situation. A judge’s ability to read and understand the briefs and render a wise and impartial decision is far more important than political views. Kudos to Florida’s lawyers for trying to prevent an unfortunate politicization of their judicial system.
Posted: 11/25/2013 12:00:00 AM by On the Merits Editor | with 0 comments