Attention Malcontents!

Ok, my surly curmudgeons, this one's for you. In the day to day course of my practice, I come across the occasional client who is hell bent on really sticking it to the other guy. More important than the money, the protection of a business relationship or some other valuable asset is some deep-rooted desire to punish and huniliate the other guy.

Ignoring the obvious that folks like this do not believe in karma, I am frequently approached and requested by clients to undertake a course of action whose primary purpose is to make the litigation as painful as possible and the other guy's life similarly miserable.

My other favorite situation along this vein is when clients tell me that they've got someone backing them financially to make sure I do this (largely because the backer hates the other guy more than the actual client).

Hopefully, you are reading this in disbelief and are thinking to yourself, "I could not and would not ever do such a thing." Good for you. For those of you who think this sounds like one of your meetings with me or your own lawyer, you should know that stirring up litigation is illegal. Read on, friends.

As a matter of law, paying someone to pursue a lawsuit and acting as the person bringing that lawsuit for the principal purpose of stirring up litigation and being a general pain to someone else is illegal and a crime. By the way, this law applies to lawyers, too, who may be trying to suggest frivolous or questionable litigation for the principal purpose of annoying someone else.

The statute you need to know is 877.01. It says in pertinent part:


The 2008 Florida Statutes
Title XLVICRIMES
Chapter 877MISCELLANEOUS CRIMES
View Entire Chapter
877.01 Instigation of litigation; penalty.--
(1) Whoever gives, promises, offers or conspires to give, promise, or offer, to anyone any bribe, money, goods, presents, reward, or any valuable thing whatsoever with the intent and purpose of stirring up strife and litigation; or with intent and purpose of assisting, seeking out, influencing, or advising the accused, sick, injured, uninformed, or others to bring suit or seek professional legal services or advice, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) Whoever, in any way, solicits, receives or accepts or agrees to receive or accept, or who conspires to receive or accept, any bribe, money, goods, presents, reward, or any valuable thing whatsoever, or any promise, contract, or agreement whatsoever, with the intent and purpose of stirring up strife and litigation; or with the intent or purpose of seeking out, influencing, assisting, or advising the accused, sick, injured, uninformed, or others to bring suit, or seek professional legal services, counsel, or advice, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Play nice, everyone.

44

Democrat, Republican or independent - today is a historic occasion. We are and should be rightly awed that we have for once lived up to our lofty promise contained in the Declaration of Independence that all men are created equal and that we put aside racial barriers and elect a man to the Presidency of the United States that the Constitution counted as only three-fifths of a person and less than fifty years ago, would not have been able walk, drink, eat or sit in the same place as white citizens of the same country.

Not to minimize or take away from the meaning of this gigantic leap forward we make not only as Americans but as the humans, but we have something else to be thankful for. Today, as we have done forty-three times before for the world to see, we watch the chief executive officer of a country and commander of its military willingly, peacefully, without coercion, force or rebellion, sit down with a successor he had absolutely no hand in picking, turn over the keys to his office and disappear from governance. We take for granted that this is the case and yet the world is full of instances of rebellion, violent overthrow and challenges to duly elected officials by political rivals and challengers (check out Africa and Asia for examples).

For all of its shortcomings and faults (which, thankfully, our Constitution allows us to acknowledge in public and express), the United States has managed this unbelievable task of peacefully handing power over to successors without fail. We are a plural society and, where more than one opinion or set of beliefs resides, geopolitics frequently proves that one group seizes and then desperately clings to power and often at the expense of the minority voices. Not so here.

In discussing this historic day with friends and coi-workers, I was surprised to learn that many people (including me) do not fully understand or appreciate what the scope of duties are for the President. So, without further ado, I present to you the Constitution of the United States (well, the relevant part, anyway):

Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

Section 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

Congratulations to the Forty-Fourth President of the United States of America, Barack Obama - and congratulations to all of you for helping to fulfill the promises of the Constitution and the ideals that might still be able serve as an example to the rest of the world.

Little Johnny's a Criminal?

Good morning parents and students. This is directed specifically towards you. While the idea that cheating is bad is not news to you, the idea that it is criminal might be. For those of you who may have missed that - cheating in school is illegal.

By that, I mean, of course, certain forms of cheating. Lying to the gym teacher about whether you were really hit with the dodgeball will not land you a stint in the pokey. However:

877.17 Works to be submitted by students without substantial alteration.--
(1) It shall be unlawful for any person or business entity to sell, offer to sell, or advertise for sale any term paper, thesis, dissertation, essay, or report or any written, recorded, pictorial, artistic, or other assignment which the seller or advertiser knew or reasonably should have known was intended for submission by a student, unaltered to any substantial degree, in fulfillment of the requirements for a degree, diploma, certificate, or course of study at a university, college, academy, school, or other educational institution in the state.



If you violate this statute, you can be charged with a second degree misdemeanor. Sounds pretty simple - don't sell papers or other school projects to students, but the number of instances I found of this leads me to believe that this is booming business on campuses around America. So much so, in fact, that legislatures (other states have adopted similar laws) have had to make it a crime in order to try to stop it. That's disconcerting.

So, all of you budding entrepreneurs out there, stay away from selling that "A" you received for your work on "Napoleon: Proof That Invading Russia In Winter Is The Hallmark Of Stupidity" to that freshman down the hall. If you want to make money, you can still offer typing, tutoring, research and editing as services, be paid for it and stay out of jail - all at the same time.

Have a great holiday weekend.

Wait....It Is Your Job, After All

Like life, the English language and just about everything else, every rule seems to have an exception. For instance, in my last entry I told you about your lack of duty to assist, help or get involved. I told you that you could essentially walk the face of the State of Florida with blinders on, ignorant to the needs or wants of those around you and do so without the fear of inviting litigation or criminal penalty.

Guess what? There is an exception to this rule and it has to do with, of all things, fire. So, that you can reference this the next time you start a bonfire in your yard:

877.15 Failure to control or report dangerous fire.--Any person who knows, or has reasonable grounds to believe, that a fire is endangering the life or property of another, and who fails to take reasonable measures to put out or control the fire when the person can do so without substantial risk to himself or herself, or who fails to give a prompt fire alarm, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, if:

(1) The person knows that he or she is under an official, contractual, or other legal duty to control or combat the fire; or

(2) The fire was started lawfully by the person or with his or her assent and was started on property in his or her custody or control.

Now, I have to admit, the statute is not a model of clarity. Plainly, a fireman is under an official, contractual or other duty to combat a fire. But what about you? Mr. or Ms. Smith, just driving by the scene? Typically, you have no obligation - unless, of course, you are a member of some fire department OR the fire is on your property or was otherwise started by you or with your permission. That means, weekend warriors, if you go to the Everglades and your campfire spreads to the surrounding dry brush, you can't just run for the car and get out of town. You are, in fact, responsible for reporting the fire.

It's Not My Job

I always hear that we live in a "community" of sorts and the public and private outlets are always imploring me to acknowledge or practice the ideal that we should all help one another. This sentiment has been around for a long time. You may remember that Hillary Clinton, back in her days as First Lady, frequently employed the slogan "It Takes a Village." There are about a million more of these slogans out there ("One World One Peace," "Together We Can Build A Better Tomorrow"). From all of the attention and hype this sentiment receives, you would think that we've got some real impetus to come together to form a more perfect union (See? It goes all the way back to the Declaration of Independence).

The law does not share in this sentiment of a collective whole coming together. In fact, the law seems to be very Thomas Jefferson-like in that it protects the sanctity of the individual and rewards the lack of entanglement in the affairs of others. You see, in Florida we have no obligation to help one another. Seriously. If you are walking down the street, somebody falls in front of you, breaks a leg and hits his head on the pavement, you need do nothing. You are not liable to this person for damages (unless, of course, you pushed him) and have no obligation to call the police, provide first aid or what have you. You get to go on about your business.

Sound morally wrong? It gets worse. If you decide to act on your moral compunction to assist, you better be right and good ad rendering first aid. Once you get involved, you can be liable for making any condition worse.

You are not reading this wrong. There is no legal duty to assist another person in distress, but if you choose to, count yourself in for any additional damages caused.

Maybe that's why we need all the slogans.

Gator Fans Beware

In light of last night's National Championship, I thought that a brief reminder that it is illegal in Florida to breach the peace with an out of hand orange and blue celebration was in order. Take note:

877.03 Breach of the peace; disorderly conduct.--Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

I particularly like the broad sweep of the statute to include everything and anything that anyone could conceive of as a corruption of public morals or outrage of public decency. As phrased, you could be a Gator fan living in Tallahassee and breach the peace just by being in public and celebrating your big victory last night by yelling and screaming or teasing Seminoles fans about their final ranking.

While I am all for law and order, I find the scope of this statute a little unsettling. As you can imagine, it gives police and prosecutors broad scope to keep the people at bay at public gatherings.

So - all you Gator fans, keep an eye out when you head out tonight. The police office might just be a UM fan.

The Pits

Living in Florida as we do, you may have succumbed to the temptation in the last few years to make improvements to your home or landscaping. You may also still be in the middle of that project and fear that it will never, ever end. As a result, you may have construction materials, earth movers or even open holes on your property.

Well, even though Florida is a flat state into which we cannot even dig deep enough to sink a basement or cellar, the legislature managed to regulate the digging of holes on your property. Can't be true, you say? Check this out:

768.10 Pits and holes not to be left open.--It is not lawful for any company or individual to leave open any pit or other hole outside of an enclosure of a greater depth and breadth than 2 feet; provided, however, such pit or hole may be left open by enclosing the same with a fence or other enclosure that would be a safeguard against horses, cattle or other domestic animals falling into the same; provided further, that this section shall not apply to pits or holes made by any company or individual while bona fide engaged in actual mining operations, such pits and holes to be enclosed as herein provided when said mining operations shall cease or be discontinued.

So, you can dig a hole as big as you want provided you fence in those bigger than 2 feet deep or wide and make that fence strong enough to keep your neighbor's Holstein from falling in.

And what happens if you don't? That's the part I find pretty important. If you get sued because someone gets hurt by virtue of falling into your pit/hole/what have you, you have to pay TWICE the value of the damages found against you. That's right - double. So, stop digging tiger traps on your property or put a fence around them.