Without Fear, Favor, or Sympathy

Today was my last day of Jury Duty! Unfortunately for me, because I was an alternate juror, I was not a part of the final jury that is deliberating today and tomorrow (and however long it takes thereafter to reach a unanimous decision). The other alternates and I were dismissed today and thanked by both attorneys.

The Honorable Judge even remembered where I study! Before I left his court for the last time, he calls out “Oh and Alternate 3, good luck at NYU”

I blushed. So awesome that he remembered!

After that we got to briefly meet both the defense and prosecution attorneys, and that was really amazing. What I found disconcerting (but cool) was the rapport they had with one another out of the courtroom. Not only cordial, they were swapping stories, laughing, and at ease with one another. I don’t know if the reason is that she has defended many people against the ADA who was prosecuting the case or what, but you would have thought them a pair of friends if you saw them outside of the courtroom.

To me, that’s crazy. All personal emotions and relationships need to be left outside of the courtroom, but no matter how competitive the case gets, they are able to look one another in the eye with no hatred afterwards. No resentment.

I wonder if someday in the future, I’ll discover the secret of how I can do that.

I totally wrote this post up on June 27, but never got around to posting it. Better late than never!

I do not know if and when the frequency of blog posts on my blog will become faster. I’m in a real writing rut right now, and haven’t been doing much graphic design either.

I expect no fear, favor, or sympathy from my readers either. I’m still around though, so don’t give up on me just yet!

Breach of Fiduciary Duty

My second in a series of litigation-related personal responses since I’ve started my internship this semester. The first related to Dismissal of Action regulations. That one was simple – a matter of formality to be submitted to the Courts after a settlement had been reached.

The case I’ve been reading now is much more different. It is more involved, its an ongoing lawsuit, and it involves equities more than trademarks. Before I begin to generally discuss my new knowledge (Because case specifics would be unethical to discuss with respect to multiple privacy concerns), I’ll start us off with some lovely legal jargon necessary to understand what I’m saying.

I want to preface this by saying that prior to reading through this case and researching terminology when needed, I did not know any of the below legal jargon myself. So don’t worry – I’m not that much of a smartypants. I had to look it up/ask the attorney multiple times.

What use is a post about Fiduciary duty if you don’t know what fiduciary means! That’s where I’m going to start.

1. Fiduciary

1) n. from the Latin fiducia, meaning “trust,” a person (or a business like a bank or stock brokerage) who has the power and obligation to act for another (often called the beneficiary) under circumstances which require total trust, good faith and honesty. Characteristically, the fiduciary has greater knowledge and expertise about the matters being handled. A fiduciary is held to a standard of conduct and trust above that of a stranger or of a casual business person. He/she/it must avoid “self-dealing” or “conflicts of interests” in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him/her/it.While a fiduciary and the beneficiary may join together in a business venture or a purchase of property, the best interest of the beneficiary must be primary, and absolute candor is required of the fiduciary. (Emphasis added)

2. Information and Belief

n. a phrase often used in legal pleadings (complaints and answers in a lawsuit), declarations under penalty of perjury, and affidavits under oath, in which the person making the statement or allegation qualifies it. In effect, he/she says: “I am only stating what I have been told, and I believe it.” This makes clear about which statements he/she does not have sure-fire, personal knowledge (perhaps it is just hearsay or surmise), and protects the maker of the statement from claims of outright falsehood or perjury.

3. In perpetuity

adj. forever, as in one’s right to keep the profits from the land in perpetuity.
In my case, our client receives a royalty income in perpetuity.

4. Limited Liability Company (LLC)

I have seen law firms with LLC at the ends of their names for years now. I finally took it upon myself to google it. I don’t think I can condense the regulations and definitions of an LLC into a few lines. Please click me to read the IRS’s description about limited liability companies.

5. Inter Alia

I’ve never seen this used. It’s just Latin for “among others” (pretty cool!)
(in-tur eh-lee-ah) prep. Latin for “among other things.” This phrase is often found in legal pleadings and writings to specify one example out of many possibilities. Example: “The judge said, inter alia, that the time to file the action had passed.”

6. Arrears

n. money not paid when due, usually the sum of a series of unpaid amounts, such as rent, installments on an account or promissory note, or monthly child support.

7. Unjust Enrichment

n. a benefit by chance, mistake or another’s misfortune for which the one enriched has not paid or worked and morally and ethically should not keep. If the money or property received rightly should have been delivered or belonged to another, then the party enriched must make restitution to the rightful owner. Usually a court will order such restitution if a lawsuit is brought by the party who should have the money or property.

8. Constructive Trust

A relationship by which a person who has obtained title to property has an equitable duty to transfer it to another, to whom it rightfully belongs, on the basis that the acquisition or retention of it is wrongful and would unjustly enrich the person if he or she were allowed to retain it.

A constructive trust does not arise because of the expressed intent of a settlor, one who establishes a trust. It is created by a court whenever title to property is held by a person who, in fairness, should not be permitted to retain it. It is frequently based on disloyalty or other breach of trust by an express trustee (the person appointed or required by law to execute a trust), and it is also created where no express trust is created but property is obtained or retained by other Unconscionable conduct.

The right to a constructive trust is generally an alternative remedy. The aggrieved party can choose between a trust and other relief at law, such as recovery of money wrongfully taken, but cannot obtain both types of relief.

The decree establishing the constructive trust requires the defendant to deliver possession and convey title to the property and to pay to the plaintiff profits received or rental value during the period of wrongful holding and otherwise to adjust the equities of the parties after taking an accounting.

9. Unconscionable Means

When a court uses the word unconscionable to describe conduct, it means that the conduct does not conform to the dictates of conscience. In addition, when something is judged unconscionable, a court will refuse to allow the perpetrator of the conduct to benefit.

In contract law an unconscionable contract is one that is unjust or extremely one-sided in favor of the person who has the superior bargaining power. An unconscionable contract is one that no person who is mentally competent would enter into and that no fair and honest person would accept. Courts find that unconscionable contracts usually result from the exploitation of consumers who are often poorly educated, impoverished, and unable to find the best price available in the competitive marketplace.

Unconscionability is determined by examining the circumstances of the parties when the contract was made; these circumstances include, for example, the bargaining power, age, and mental capacity of the parties. The doctrine is applied only where it would be an affront to the integrity of the judicial system to enforce such contracts.

Unconscionable conduct is also found in acts of Fraud and deceit, where the deliberate Misrepresentation of fact deprives someone of a valuable possession. Whenever someone takes unconscionable advantage of another person, the action may be treated as criminal fraud or the civil action of deceit.

10. Quantum Meruit

n. Latin for “as much as he deserved,” the actual value of services performed. Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment could be expected. If a person sues for payment for services in such circumstances the judge or jury will calculate the amount due based on time and usual rate of pay or the customary charge, based on quantum meruit by implying a contract existed.

 

So…a lot of learning right there. That’s why I love this internship! I learn so, SO much every single time. Actually, I got an e-mail today morning – my attorney invited me to come along with them to court where they were going to be contesting for sanctions for the defendant (We are representing the plaintiff in this case)

I’ve read the case action against the defendant from the plantiff’s POV so far. It was quite interesting, but quite long as well. I crammed in the rest of it during lunch break, that’s how fascinated I was while reading the case and observing how our firm retold the story, pointed out breaches and nicely summed up quite an insulting case action against the defendant. We’re accusing them of fraud, malpractice, embezzlement…you name it. The lawsuit is going to be for some ridiculously high amount like $30-50 million dollars. (Estimated. I don’t want you googling this!)

But really, QUITE fascinating. I’m really bummed I couldn’t join with the team and observe them in court today. Maybe next time. I hope so, next time! This case is going to be my baby – I’m going to see it through to its completion, however it may turn out.

Being somebody’s fiduciary is like…being their trusted/loved one. And then breaching that fiduciary trust is convincing them that you have their interest at heart, convincing them to give you POA, and then slowly diverting all of their income to yourself. Its pretty extreme – people tell their significant other that they’ll just help them manage their finances, but the reality is that they aren’t paying the bills, taxes, or pension funds. They’re literally stealing away your livelihood and all the while, you don’t suspect a thing until its too late, your trust funds are all gone, and you find yourself broke.

Ridiculous! This is why I don’t want to be too rich. You make far too many enemies.

Rule 41: Dismissal of Action

Today marks the day I began my first (non immigration law related) legal internship. That’s right – I’m the legal intern for The Serbagi Law Firm, P.C. for this semester. Super proud of myself for getting this internship. My boss/mentor is a great and extremely knowledgeable man and I’m really glad to get the opportunity to work for him. He’s been teaching me about all kinds of things related to trademark and copyright law. The firm specializes in trademark litigation, and most of their trademark dockets are for pharmaceutical companies. Really cool – I’ve already learned how they write up their local and international dockets, as well as some of the case history for their current clients. But all of that is confidential and won’t be discussed on my blog, of course.

Today, I wrote up a Stipulation of Voluntary Dismissal to be filed with the U.S. District Court – Southern Court of New York. If you are at all interested, here is a link to the PDF Template for this form, found on the USDC website. Because there was already a settlement agreement between the plaintiffs and defendants in this case, the case was being dismissed with prejudice I believe. He might have changed it to without – I’m not quite sure as I didn’t look at the final draft.

The next question I had was, of course – What does it mean to dismiss a claim with or without prejudice?

Dismissal with Prejudice: (Taken from uslegal.com) A dismissal with prejudice is dismissal of a case on merits after adjudication.The plaintiff is barred from bringing an action on the same claim. Dismissal with prejudice is a final judgment and the case becomes res judicata on the claims that were or could have been brought in it.

Basically, to dismiss a case with prejudice means that no further action can be brought to court based on the same claim. If a breach in contract was the basis for the original claim by the plaintiff, a dismissal of that claim with prejudice means that the plaintiff will no longer be able to sue or re-file another claim based on that same breach. That’s what I make of it.

Trademark law is fascinating. I’m starting to really get into it. Intellectual property rights and trademark litigation require all the logical reasoning and problem solving techniques they require that you master on the LSAT, but don’t have the heavy economics or finance background that a career in mergers and acquisitions would require. And because I don’t WANT a math-heavy job, but don’t necessarily want to deal primarily in civil or criminal law, this kind of career is starting to appeal more and more to me. I can see myself doing my boss’s job as my own career. And that’s a good feeling.

Today’s day at the office though, involved learning all about Rule 41: Dismissal of Action from the Federal Rules of Civil Procedure. I had to apply that rule to the Stipulation of Voluntary Dismissal that I wrote up. Because the other party, namely the defendants, had already filed a counterclaim against the plaintiff’s action, the stipulation that I wrote had to dismiss the plaintiff’s action against the defendants but also, in a new paragraph, dismiss the defendant’s counterclaims. To dismiss the original action, I used rule 41(a)(1)(A)(ii). To dismiss the counterclaim, I used rule 41(c)(1).

Like I said…fascinating stuff. I’m really enjoying this. And now that I’m done typing up this post, I’m going to go head home. We still have no WiFi in the apartment – Verizon claims they don’t even have our order number anymore. Wtf? I looked up their number while here, so between now and this evening, I need to resolve this matter with Verizon.

Wish me luck!