Archive for March, 2016


BabyB LPlate improvedToday I was instructed by an insurance company to go and kick out a claim against some builders who had accidentally burnt down a house in which they had been working.  Despite the fact that the builders’ insurers had accepted responsibility, today they wanted to get out of paying a single penny simply due to the fact that the homeowner’s solicitors had delivered the claim form half a day out of time.  The other side argued that if the solicitors had been negligent then the claimant would have a remedy against them.  The judge agreed and kicked out the case.

Which about sums up much of this crazy legal system of ours.  The people responsible get off and both side’s lawyers will get paid by insurers.  It’ll then go off to be litigated in an even more complicated and technical professional negligence action in which two more sets of lawyers will profit.  Several years after the damage was caused, the homeowner might get to see a small amount of compensation.  Well, maybe.

Worst of all, I could see my opponent today delighting in the technical point he was succeeding on.  Just when is it, I wondered, when someone suddenly changes and becomes a lawyer?  When they start taking pleasure in diverting justice away from the people it is ostensibly there to serve by raising some clever, weedly, finickity little point which other than lining the pockets of even more lawyers  serves only to add to the sum of human misery in the world?

Whenever it is, it happens just as surely as legal cats becoming very fat.

March 29, 2016 · Tim Kevan · Comments Closed
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Monday morning with Alex Williams’ cartoons

This cartoon is by Alex Williams who draws the Queen’s Counsel cartoons for The Times and in numerous books including The Queen’s Counsel Lawyer’s Omnibus. He offers almost all of his cartoons for sale at £120 for originals and £40 for copies and they can be obtained from this email

March 28, 2016 · Tim Kevan · Comments Closed
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Is there Legal Trouble Ahead for Home Depot?

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The Consumer Product Safety Commission (CSPC) just released some incredibly disturbing news. It seems the home repair giant Home Depot has been selling recalled goods. Between the items the company left on its shelves and offered directly to consumers, as well as those given to salvage companies which may have been sold, some 2,300 units were distributed. Unknowing consumers run the risk of being shocked, burned, cut, or worse, depending on the product they purchased. A local personal injury attorney has been contacted with regards to customers actually being physically hurt.

Home Depot Continued to Sell 28 Different Products After Recalls were Issued

The list of recalled products is incredibly extensive, and is not limited to items purchased directly from Home Depot. As is the case with many retailers, the company offers stock that isn’t selling to recyclers and salvagers, which may have also sold these products. Although the CSPC was unclear as to which companies received the recalled items, many of them may have wound up at liquidation stores or sold by third-party vendors. Alarmingly, the supply chain has made a habit out of selling recalled items. So far, the CSPC has identified 28 different recalled products, sold over a three-year span.

  1. CE Tech 1,000 Ft. Riser Cable (Fire Hazard)
  2. Cordelia Two-Lamp Fluorescent Shop Lights (Electrical Arc and Fire Hazard)
  3. Easy Reach by Gorilla Ladders 3-Step Pro Series Step Stools (Fall Hazard)
  4. Fiskars Bypass Lopper Shears (Serious Injury and Laceration Risk)
  5. Genie Garage Door Openers (Fire Hazard)
  6. Harris Products Group and Lincoln Electric Welding Torch Handles (Fire Hazard)
  7. HeathCo Motion-Activated Outdoor Lights (Electrical Shock Hazard)
  8. Homelite Electric Blower Vacuums (Laceration Hazard)
  9. Homelite Electric Blower Vacuums (Fire and Burn Hazards)
  10. Kidde Disposable Plastic Fire Extinguishers (Injury Risk)
  11. Kidde Smoke and Combination Smoke/CO Alarms (Injury Risk)
  12. Legrand Under-Cabinet Power Strips (Electrical Shock Hazard)
  13. Legrand Under-Cabinet Power Strips (Fire Hazard)
  14. LG Electric Ranges (Fire and Burn Hazards)
  15. LG Top-Loading Washing Machines (Property Damage and Injury Risk)
  16. Lithonia Quantum® ELM and ELM2 Two-Light Emergency Lighting Fixtures (Fire and Burn Hazards)
  17. MAT Industries HDX™ and Powermate® Two-Gallon Air Compressors (Shock Hazard)
  18. Mohawk Altitude Gold Shag Rugs (Fire and Burn Hazards)
  19. Nest Protect Smoke + CO Alarms (Injury Risk)
  20. Nourison I-CANDI Collection Polyester Shag Rugs (Fire and Burn Hazards)
  21. Pramac America Powermate Sx 5500 Portable Generators (Fire Hazard)
  22. RSI Glacier Bay® Bathroom Medicine Cabinets (Injury Risk)
  23. Soleil Portable Fan Heaters (Fire Hazard)
  24. SoleusAir Dehumidifiers by Gree Electric Appliances (Fire and Burn Hazards)
  25. Vornado Air Electric Space Heaters (Fire and Burn Hazards)
  26. Waterloo Industries Husky® Securelock Vertical Bike Hooks (Injury Risk)
  27. Westinghouse Lighting Glass Shade Holders (Shock Hazard)
  28. Wing Enterprises Switch-It Stepladder/Stepstools (Fall Risk)

Might Home Depot Have to Pay Millions of Dollars in Fines?

Because of the Consumer Product Safety Improvement Act of 2008 (CPSIA), might Home Depot potentially face millions of dollars in fines? Generally, civil penalties range from $100,000 to $15,000,000, though there’s no telling just how high the total might potentially be in this instance. About a year ago, the grocery chain Meijer was caught up in a similar legal situation. The company sold 1,700 units, split up among 12 products. They ultimately agreed to pay $2 million in penalties. It’s also worth noting that any third-party vendors or liquidation stores that received items and resold them may face similar penalties, as each entity is responsible for verifying items have not been recalled. CPSIA imposes fines regardless of whether the seller is a corporation or an individual, so consumers who purchased the products and resold them may be in hot water, too.

Although some of the individual products may have injuries reported with them, at this time nobody is reporting any injuries directly linked with items sold at Home Depot after they were recalled. Even still, these things take time to unfold, and it wouldn’t be surprising at all to see several personal injury cases emerge as a result. Companies that received the goods from Home Depot may also seek damages from the company in court. Certain products, like the smoke and carbon monoxide alarms, have the potential to be silently deadly, so consumers who have any of the products listed here should stop using them immediately. As each product was involved in a separate previous recall individual instructions are provided on a per-item basis on the CSPC website.

March 24, 2016 · Tim Kevan · Comments Closed
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Minors With Sentences Of Life Without Parole Getting A Second Chance in the USA

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We have all done something that we aren’t proud of, and as anyone knows, it is hard to make up for our sins. When it appeared that perpetrators of heinous crimes were getting younger and younger, there are those who stood up and insisted that their actions were not of a child, but they were of an adult, and they should be prosecuted as such.

Many in prisoners are living a life sentence that started paying their sentence even before their lives began. A new Supreme Court Decision may be giving some of those who made mistakes in their youth, hefty inexcusable mistakes like domestic assault and battery, a second chance.

This past Monday the Supreme Court ruled that juveniles who have received, or who will receive life sentences, are eligible to seek parole. That means that as many as 2500 inmates who were not eligible before may be given a second chance at freedom.

Those who would have otherwise never have seen the outside of prison walls are being granted the opportunity to plead their case for a new try. Juveniles who committed murder, and received a life sentence, are now being given the opportunity to argue for their release.

Furthering the law in 2012 that disallowed the then mandatory life terms for juveniles who commit murder, the new ruling is likely to affect thousands who were sentenced before the ruling was struck down. Many of those who will be eligible are located in just three states, Louisiana, Michigan, and Pennsylvania.

Those three are the states which in 2012, had made the decision that the are ruling would not be retroactive. Being overturned, those within the three districts will now be reconsidered for release.

Justice Kennedy, leading the charge, insists that even in the most heinous of crimes, you can’t possibly equate children with adults. Having different brain structures and the inability to reason in the same way, he insists they can’t be held accountable for their actions in the same manner. Since 2005, capital punishment has been stricken from options for minors, and they also could not receive a sentence of life without the potential for parole unless murder were the crime.

The case that took the issue all the way to the Supreme Court was Miller v. Alabama where Henry Montgomery of Louisiana was convicted as a minor at 17 when he shot a sheriff’s Deputy. Although initially not being included in the ruling for a second chance at parole, the new ruling now makes him eligible. Kennedy believes that there are some juveniles who really have been rehabilitated and should be allowed a second chance.

There are scholars on both sides who believe that it is a risky practice to hold juveniles responsible for their actions in the same way that you do adults. Not having the same intellectual capacities, nor the same ability to decipher right from wrong, it is difficult to have a one size fits all and assume that you are making the right decision across the board for every minor in every situation. There are many who, are opposed to mandatory sentences for children in any circumstance, leaving the ruling and decisions for punishment where it is supposed to be, on the sitting judge.

The refractoriness of the ruling is due to Kennedy’s insistence that those who came before are no less worthy of the same eligibility simply because their case came before ruling and reason. Overruling the findings of Louisiana, the new judgement took precedence over the one before not to retract the eligibility for parole for any juveniles who were subjected to sentences of life without parole in murder cases at any point in history.

Justice Scalia feels that the new ruling is counter to what is right and that juvenile cases should hold when they commit crimes that are outside of reason. Those that are so heinous that rehabilitation would not be possible should not be considered for parole. He also believes that Kennedy was wrong to take away the retroactive stipulation.

Kennedy believes that the law will prevail. If a juvenile is un-rehabilitated, they will not get parole. The justice system will do its job to keep those who are still dangerous where they belong. What he may be overlooking are the times when those who have been released have gone on to commit crimes. A very complex issue, it is likely to resurface again in the future.

March 24, 2016 · Tim Kevan · Comments Closed
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BusyBodyWhy is it that lawyers have to complicate everything?  Today chambers were deciding whether to take up the offer of sponsorship from a book publisher for a seminar day that they are holding in a few weeks time.  Worth all of £250.  But the amount wasn’t going to stop some of the great minds our country has to offer putting in their two penneth.  Or two hundred thousand penneth more like.  ‘Can’t be meddling with the commercial world’, ‘possible conflict of interest’, ‘can’t be seen to be advertisng other products’, ‘unbecoming of the profession’ were all comments which came up.  Then of course there was the issue of the contract itself.  Would it be just for the event itself or would the publisher be able to refer to the sponsorship afterwards?  Would they be able to mention chambers on their website?  What about copyright of the material in the lectures?  The questions were endless and mind-numbing in the extreme.

It’s like in lawyerville there’s no black and white.  No straightforward.  No ‘let’s just get this done’.  It’s all just technicalities, ambiguities and grey areas.  Adding layers of complications onto otherwise simple situations.  As if they inhabit some weird parallel universe where nothing can get done without someone sticking their nose in and complicating it.  It gets to the point where it’s almost hard to imagine how they even manage to get out of bed in the morning without drafting some code of conduct to regulate it.

Or maybe they already have and I just haven’t yet been inducted that deep into their mad little system.

March 22, 2016 · Tim Kevan · Comments Closed
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Monday morning with Alex Williams’ cartoons

This cartoon is by Alex Williams who draws the Queen’s Counsel cartoons for The Times and in numerous books including The Queen’s Counsel Lawyer’s Omnibus. He offers almost all of his cartoons for sale at £120 for originals and £40 for copies and they can be obtained from this email

March 21, 2016 · Tim Kevan · Comments Closed
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The Anatomy of a Good Opening Statement: 7 Winning Tips

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Who wants to hear a good story?

That is what jurors will hear when it’s time for opening statements. You might hear money; your client might hear an out of jail free card, but the person for which you are writing the opening statements will think “I hope this will be worth my time.”

The story you sell has to be good enough to convince the jurors that your version is better than the opposite’s narrative.

Without further ado, here are seven ways to deliver the winning story.

1. Stay Flexible

Everything is easy and nice when you’re the first attorney that delivers their opening statement. But when you’re the second, this is when things get tough, and you must prove your worth.

The first attorney has the power to create an anchoring effect and influence judges with their version of the story. They will present many incriminating facts, and you must be ready to address them and spin them in your favor.

So listen closely to what the other attorney is saying and take down notes. To counterattack the opposite’s side arguments, mention the facts that you can support with evidence or try to dismount the premises made. However, don’t let the opening statement of the other attorney influence yours too much; stick to your structure, and be flexible enough to answer to challenges.

2. Forget the “Beyond A Reasonable Doubt” Concept

Naturally, jurors will try to be as objective as possible and take into consideration every single aspect. They will even try to understand as much as possible – but the way the human brain works is going to make it difficult for them to accomplish that.

Decisions are made at a subconscious level and are mostly influenced by the negative facts. So defense attorneys should not try to dismiss the case of the opposing counsel in a superficial and over-confident way. Don’t assume simply jurors have a “lie detector” when it comes to the unimportant or not plausible information.

3. Don’t Be Shy about Exhibits

Seeing has a greater impact than hearing, so exhibits during opening statements can carry a great impact on the juror’s decision. To display exhibits that will positively influence the juror’s impression, make sure that it is not prejudicial, that it is relevant and that the jurors will admit it in the Court. The elegant thing to do is let the opposing counsel and judge know that you will use exhibits.

4. Make Sure You Know Some Storytelling Fundamentals

You must be able to deliver your opening statement to jurors as if you would tell it to a friend. That way, you can establish a familiar connection with them.

Facts will most likely bore them, so try to knit a compelling description of the events. Also, your story must be chronological since it is easier to follow this way. Ultimately, don’t drag the story out for too long – your opening statement shouldn’t be longer than 15 minutes if you wish to keep the jurors hooked.

5. Stick To One Theme

If you are the prosecution, then settle a series of values like the sanctity of home or freedom of speech, and use them throughout the trial. If you are the criminal attorney San Diego, then wait to see what the prosecution presents first to plan your strategy. Also, don’t make the mistake of trying to present two alternative positions “just in case,” because jurors won’t buy it.

An efficient opening must hook the jurors from the first paragraph because you will return to the idea stated there every single time, even at the end of the statement.

6. Don’t Bomb Them With Names

You might indeed have a long list of witnesses, and all might be important, but if you start telling all their names, jurors won’t be able to follow. That is especially true if the witnesses aren’t very relevant to the case. Not telling all the names of the witnesses you have in mind might come in handy later on, if you reconsider some of them at some point.

7. Don’t Stretch Too Much

It might be tempting to start promising things during opening statements, but you are taking a big risk by doing so. If you can’t keep your promise, your credibility will be shredded to pieces. You are free to promise something that you are sure of, however.

How do you prefer to structure your opening statements? Do you have other tips? Share your thoughts in the comments below.

March 15, 2016 · Tim Kevan · Comments Closed
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In my dreams

OldRuin“What would be your dream life, BabyB?” It was OldRuin again, having had time to mull over what I’d said to him yesterday.
“I’ve no idea,” I replied. “But I guess it’d have to involve having financial security for my mother. Maybe pay off her debts, get her a bigger house.”
“And what would you be doing?”
“I don’t know. I never imagined I’d be a barrister but I kind of like it now I’m here. Sounds sad but the security thing’s the only bit I’d change.”
“Will you grant me a wish, BabyB?”
“Of course, OldRuin. What?”
“That you try to stop making plans and start dreaming again. Dream like you were a child again.” He hesitated before continuing, “Boundless.”

I’ve no doubt that I looked more than a little perplexed and he fell back into a voice I’ve heard him use before, only just above a whisper. “It’s sorrow and longing which carve out the depths of your soul, BabyB.” Again he looked at me, this time a little wistfully before adding, “But it’s your dreams which give it life.”

March 15, 2016 · Tim Kevan · 3 Comments
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Monday morning with Alex Williams’ cartoons

This cartoon is by Alex Williams who draws the Queen’s Counsel cartoons for The Times and in numerous books including The Queen’s Counsel Lawyer’s Omnibus. He offers almost all of his cartoons for sale at £120 for originals and £40 for copies and they can be obtained from this email

March 14, 2016 · Tim Kevan · Comments Closed
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Legal Aid Tightens Restrictions On Lawyers Taking On Refugee Cases

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The organization Legal Aid Ontario is clamping down on rules about which lawyers are allowed to take refugee cases. Over the past four years, claims have been made that there are a vast number of Hungarian Roma refugees who were supposedly being represented, but were left to their own device after the lawyers were paid for services they never rendered.

Senior Legal Counselor Andrew Brouwer with Legal Aid, says that going forward, lawyers who want to represent refugees through the Legal Aid Organization will have to be authorized to handle the cases effectively. They will also have to have a command of refugee law. Passing a competency test, every local accident attorney wishing to represent them will have to be subjected to some standards of practice.

Those rules should seem to almost everyone a no-brainer. They involve having to spend time with clients, hiring a translator, preparing refugees to ensure that they can aid in their own defense and being able to tell the whole story of their plight from start to finish.

It also involves following through with all the legal documents needed and filing the evidence that has been uncovered. In essence, the standards are that you provide the client with the defense they need to defend themselves.

With more standards in place, it will make it easier to vet individually each lawyer and ensure that they can effectively do the job they are hired for and that they take payment for. For the first time, there will be checks and balances in place to watch over the entire process.

The lawyers representing Hungarian refugees in the future will have to demonstrate their abilities through audits. For those lawyers who intend to follow the process from beginning to end, there will be a separate proficiency accreditation to deal with filing appeals.

Why the need for the new regulations?

There are thousands of complaints that have gone unanswered. Other organizations in Canadian law are excited that there will be a new standard of practice to protect refugees against being taken advantage of. There is regret that it has taken so long to protect those refugees who were much in need of being sheltered from the malpractice perpetuated on them.

The complaints against Legal Aid is not a new thing. Brought to the attention of the organization by a group called Roma Community Centre or RCC over four years ago, it has taken them this long, and thousands more complaints, to address the problem and to commit to making a change. Over those four years, every one of the Roma refugees has been deported without representation.

Complaints coming from all directions, the Law Society of Upper Canada, which regulates the lawyers association for Ontario, contacted the organization to make them aware that there were complaints over three years ago as well.

All the while, poor refugees were being left without any representation and returned to the country they fought so hard to escape. When asked why it took Legal Aid so long to intervene, the Law Society responsible for public ethics simply has replied, “No comment”.

Viktor Hohots, one lawyer handling Roma cases has already admitted misconduct and was sentenced to time in prison. It is likely that many others are soon to follow. In shocking reports, it is estimated that of the 11,000 refugees who tried to claim refugee status, only 8.6% were accepted.

The others were denied due to lack of, or poor, representation. That is leaving many wondering if the maltreatment of refugees is something more ominous than just a few rogue lawyers. There is speculation that there is more of an institutional bias at play.

For now, there is hope that those who were denied refugee status due to poor representation will be allowed to try again with the right counsel to help. The problem is that there are many on the other side insisting that refugee status for Hungary Roma citizens is nothing but a scam. Many insist it is a way to come to Canada to take advantage of the welfare system.

What is clear is that with so many being displaced around the world, Canada better start getting its act together to decide more standardization in representation and who they are and are not going to accept. If there isn’t some uniformity, it is going to continue to look more intentional than misshapen legalize.

March 8, 2016 · Tim Kevan · Comments Closed
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