Tuesday, October 30, 2012

EPA Develops a Wireless Tool to Get Water Quality Data

EPA’s Water Data Project has recently unveiled a new tool to easily access data collected pursuant to the Clean Water Act about water quality in most lakes, rivers and streams anywhere in the US.

The EPA Environment Justice in Action blog has a posting about the new tool How's My Waterway

While the database has been around a while, the new tool enables everyone to quickly and easily access the data to see the condition of their local waters in plain language.

To use the tool, go to How's My Waterway? and enter your location or allow the system to determine your location. I found that the Use My Location button took too long to load on my office computer, so I clicked on Choose a Location button and was taken to a page where I entered my zip code.

The only confusing part about the tool is that the button to actually take you to the database to see the list and maps of waterways is not nearly as prominent as the three ancillary buttons (About How’s My Waterway, Related Links and Help). 

To actually see the reports generated from the database you click on a little arrow that is not highlighted.  EPA should fix this small design problem to make clicking to the database as prominent as the other, less important buttons.  But this is a small issue. 

The reports generated from the data in map or list format load quickly. The list of waterways – at least based on a check of my neighborhood – seems complete.

This tool empowers anyone to wirelessly check on local waters anywhere in the nation quickly and easily. Think about using your smart phone and during a hike checking on the water quality of a lake or stream from the water’s edge.

This is what e-government should be all about.

Friday, October 26, 2012

Why Lawyers Have Bad Reputations

From the New York Post: Dad sues own kid in matter of ‘trust .

Why is it that some lawyers seem to think the courts are designed to solve every problem? Do they think suing someone – even their own children – will intimidate? Dominate? Scare? Resolve the problem?

Whatever, here is yet another story about an attorney with more bluster than brains.

As the Post put it, “This’ll make for an awkward Thanksgiving. A high-powered Manhattan lawyer has filed a $3 million libel suit — against his daughter.” 

 The daughter had the temerity to ask for an accounting of her trust fund, managed by the father. 

The merits of this case do not really matter.  Just think about this family Thanksgiving  and be grateful about your own.

According to the Post, the attorney, “who once sued a restaurant for $7 million in a dispute over a $354 tip, said he might be willing to relent” and that the family matter will be resolved. But then why did he file suit in the first place?

Wednesday, October 24, 2012

California Confidentiality Statute Allows Clients to be Defrauded if Done During Mediation

Does this heading get your attention?  Because it is true, even if the statute allowing this was not designed to produce this outcome.

The strict California mediation confidentiality statute allows this outcome, according to the California Court of Appeals, the second such decision upholding the absolute ban on disclosure of any information if it originated in mediation. 

In two cases with egregious facts the California courts have held that the mediation confidentiality statute means what it states – that no evidence of any statement, act or writing prepared for a mediation is admissible in any subsequent court proceeding. Period. End of story.

I’ve blogged about this before, reporting on a decision by the California Supreme Court in Cassel v.Superior Court,  in which the Court held that private communications between an attorney and client that take place during mediation are confidential – even when the client waives the attorney-client privilege and requests disclosure.

The most recent case is Hadley et al. v. The Cochran Firm Cal. Court of Appeal, 2nd Appellate Dist., 8th Div., 2012  in which the California Court of Appeals held that the statute applied even when an attorney stapled an executed signature page from a confidentiality agreement to a supposed settlement agreement to which the clients had not agreed, thereby settling the case and dismissing their claims without the clients’ authority or knowledge.  Wow, talk about alleged malpractice and fraud.

The trial court dismissed the claims in response to a motion in limine to exclude the evidence of the alleged fraud and malpractice because this all happened during a mediation. The court was apparently following precedent from the Cassel decision by the California Supreme Court and a reading of the plain language of the statute.  The appellate court upheld the decision, holding that the mediation confidentiality statute compelled such a result.

This is no way to encourage mediation or engender client confidence in the mediation process.  These decisions clearly show the dangers of unintended consequences. When the mediation community drafted and supported a statute with an absolute bar, and opposed the Uniform Mediation Act, which takes a far more nuanced approach, I am certain there was no thought given to results such as this.

Friday, October 19, 2012

Delaware Chancery Arbitration Scheme Declared Unconstitutional

I’ve taken a bit of a vacation from blogging. I’m back now. This blog is about the Delaware Chancery Court statute authorizing the Chancery court judges to sit as arbitrators. Authorizing sitting judges to serve as arbitrators and issue private decisions. Remarkable.

This was a statute so off the wall that I blogged aboutit last November
The system was designed to allow large corporate litigants to use the Delaware Chancery court system to litigate in secret – cases were not even docketed – and still get a decision by a judge from the Chancery court.  And to allow the judges to receive large fees as arbitrators. 

As I wrote then, the Delaware Coalition for Open Government saw the statute as unconstitutional and sued the five Chancery judges in Federal District Court challenging the scheme. The complaint argued that the statute unconstitutionally violates the First Amendment’s qualified right of access to civil and criminal trials. 
Thankfully, U.S. District Court Judge Mary McLaughlin agreed that this scheme is unconstitutional, and held on the pleadings that:

Under the Delaware law and Chancery Court rules, a sitting judge of the Chancery Court, acting pursuant to state authority, hears evidence, finds facts, and issues an enforceable order dictating the obligations of the parties. The Court concludes that the Delaware proceeding functions essentially as a non-jury trial before a Chancery Court judge. Because it is a civil trial, there is a qualified right of access and this proceeding must be open to the public. (DELAWARE COALITION FOR OPEN GOVERNMENT v. HONORABLE LEO E. STRINE, JR., et al.CA No. 1-11-1015)

While it is likely that this case will be appealed, what do you think the odds are that the Third Circuit will reverse the decision?