This came up in a discussion.
I think anyone who has participated in a moot or watched questioning in court will know that it’s very difficult to have a pre-thought-out answer for every answer that is given to you – you often have to answer/reason/mull over on the spot. That said, it seems to me that the line between what is and what isn’t coaching is a bit fuzzy. Obviously we should never tell a witness to say something which we know is false – that would be breaching a whole bunch of duties lawyers owe, as well as be facing possible criminal sanctions. But is it okay to, for example, advise a witness to use one word over another?
In Preparing witnesses: a practical guide for lawyers and their clients by Daniel I. Small, it states: ‘Witness coaching takes place when a lawyer makes suggestions that modify witness’s story and/or create a deviation from the truth.’ Presumably then, using the word ‘hit’ instead of ‘smash’ isn’t witness coaching (as Small gives as an example). I guess the best guideline we have is to remind the witness that he/she should tell the truth no matter what, and to not give or suggest answers to possible questions, or to give the exact questions which you will ask. Also it will discredit the witnesses’ reliability and it is illegal under the WA evidence rules and probably a good way to be facing the Legal Practice Board which is about as fun as a smack in the head.
Showing posts with label Civil Procedure. Show all posts
Showing posts with label Civil Procedure. Show all posts
Thursday, October 22, 2009
Wednesday, October 21, 2009
Unbelievable Lawsuits 101.
I came across an interesting article where a man faces criminal charges after a passerby and her child saw the man making coffee in his kitchen. Naked. The prosecution will have to prove that Williamson knew people were there for them to get a conviction on the charge that carries a one-year jail term and a $2,000 fine.
I came across another article on 'unbelievable lawsuits that actually happened.'
Some of my favorites:
In 1991, a Michigan man sued Anheuser-Busch for false and misleading advertising. He also claimed that he suffered personal injury as a result of the false advertisement. In his complaint, he referenced a Bud Light commercial in which two beautiful women come to life for a couple of Budweiser truck drivers. Because this didn't happen to him when he drank the beer, he claimed that these false advertisements caused him emotional distress, mental injury, and financial loss. He sued in excess of $10,000. The court dismissed all his claims.
A woman in Israel sued a tv station and it's weatherman for $1,000 when the weatherman predicted a sunny day and it rained. She said that, because the forecast was clear, she left home underdressed. She then caught the flu, missed 4 days of work, spent $38 on medications and "suffered stress" as a result of a badly forecasted day.
To inject a bit of legal analysis that is lacking in this blog post, what would happen in Australia if I was presented with or facing cases of such a spurious nature? Well, from the top of my head, I'd consider questioning the matter from the get-go, pointing out that it is a frivolous proceeding and one which doesn't have any merits, and hopefully 'quashing' the matter from the start.
I came across another article on 'unbelievable lawsuits that actually happened.'
Some of my favorites:
In 1991, a Michigan man sued Anheuser-Busch for false and misleading advertising. He also claimed that he suffered personal injury as a result of the false advertisement. In his complaint, he referenced a Bud Light commercial in which two beautiful women come to life for a couple of Budweiser truck drivers. Because this didn't happen to him when he drank the beer, he claimed that these false advertisements caused him emotional distress, mental injury, and financial loss. He sued in excess of $10,000. The court dismissed all his claims.
A woman in Israel sued a tv station and it's weatherman for $1,000 when the weatherman predicted a sunny day and it rained. She said that, because the forecast was clear, she left home underdressed. She then caught the flu, missed 4 days of work, spent $38 on medications and "suffered stress" as a result of a badly forecasted day.
To inject a bit of legal analysis that is lacking in this blog post, what would happen in Australia if I was presented with or facing cases of such a spurious nature? Well, from the top of my head, I'd consider questioning the matter from the get-go, pointing out that it is a frivolous proceeding and one which doesn't have any merits, and hopefully 'quashing' the matter from the start.
Online Poker, Jurisdiction and Legal Confusion.
I've recently become interested in playing poker online (No-limit Texas hold 'em to be precise). I came across a case where a player's money was essentially confiscated (around $50,000) because of alleged cheating. The player attempted to sue the website and the case is still ongoing. It brings up an important issue of jurisdiction - would the jurisdiction be where the player lives, where the site is hosted, or where the business is located? It is a nightmare of jurisdictional problems.
More obscure than that is the poker laws in Australia. This isn't a small industry, some estimates have put the amount of money spent on online casinos at around 300 million a year. Is it legal to gamble online in Australia? Yes. Kind of.
The federal legislation prohibiting online gambling in Australia targets the suppliers of prohibited gambling services, not the customers. It becomes more complex when the State laws interact with the federal law - e.g. in Queensland or the ACT you will be breaching the law if you knowingly participate in unauthorised gaming (where supplier is not licensed to provide).
The Interactive Gambling Act 2001 (Cth) states that it is an offence to provide interactive gambling services to a customer physically present in Australia. The offence applies to both local and foreign interactive gambling services providers. However, realistically only the foreign interactive gambling providers that have some connection to Australia are likely to be prosecuted. Some Australian providers are allowed.
"Interactive gambling services" are defined as "gambling services" provided, in the course of carrying on a business, using:
* an internet carriage service;
* any other carriage service which has at least one point in Australia;
* a broadcasting service;
* another content service; or
* a datacasting service.
"gambling services" are broadly defined as:
* A service for making bets or introducing individuals to other individuals who wish to make bets; or
* A service for the conduct of a lottery or for the supply of lottery tickets; or
* A service for the conduct of a gamewhich is played for anything of value and which involves an element of chance (games “predominantly of skill”, such as computer games, fall outside the definition of gambling services and are not prohibited ; or
* any gambling service (within the ordinary meaning of that expression) that does not fall into any of the above categories.
Express exemptions exist for:
* A telephone betting service.
* A service for online wagering - for example, on a horse race, a harness race, a greyhound race, on an event or a series of events or (provided bets are accepted only before commencement) on a sporting event.
* A public gaming service (that is, specific gaming services provided in licensed pubs, clubs or casinos including linked poker machines in clubs).
* A gambling service associated with a particular broadcasting or datacasting program, or where its sole purpose is to promote goods or services that are advertised on a broadcast service. Examples are interactive TV game shows and promotions with entry fees in the form of a 1900 telephone number.
* Online lotteries and online sale of lottery tickets (but not online scratch or instant lotteries).
* Contracts that are financial products within the meaning of Chapter 7 of the Corporations Act 2001 (Cth) . This includes contracts for options, futures and agreements entered into on a futures market or a futures exchange.
* Exempt services as determined by the Minister.
The Federal Act prohibits the broadcasting, datacasting and publishing of advertisements for interactive gambling services in Australia. An example of publishing an advertisement in Australia would be to place it on a website which is aimed at Australian end-users.
So, at the end of the day we have a situation where the legality is completely obscured. Yet we have tens and tens of thousands of Australians who nonetheless gamble online everyday.
And I really fail to see how playing poker online is different to a casino. In a casino, at least, they take a larger proportion of the rake (i.e. every hand played, the casino takes a certain amount - online, the 'rake' is much smaller and at a fixed cap). Further, if you're playing the video-game slots, (or indeed, blackjack or roulette), the house is always has an advantage to win. You cannot say the same for poker, where the skill of the players is the deciding factor, and the casino really is unconcerned with who wins or loses, because they always get a share of the pot - they just want as many people to play as possible. One of the biggest sites, PokerStars, has around 13 million registered players. Joe Hachem, the first Australian to win the World Series of Poker in 2005 earning him 7.5 million dollars, plays online at PokerStars.
I think it was Lincoln who said that to expose a bad law you should enforce it as strictly as possible. If the laws regarding online gambling in Australia were enforced as strictly as possible they would likely piss a lot of people off which politicians wouldn't be too keen about.
Or they could just recognize that practically the laws aren't enforced, and hence should change.
My 2 cents.
More obscure than that is the poker laws in Australia. This isn't a small industry, some estimates have put the amount of money spent on online casinos at around 300 million a year. Is it legal to gamble online in Australia? Yes. Kind of.
The federal legislation prohibiting online gambling in Australia targets the suppliers of prohibited gambling services, not the customers. It becomes more complex when the State laws interact with the federal law - e.g. in Queensland or the ACT you will be breaching the law if you knowingly participate in unauthorised gaming (where supplier is not licensed to provide).
The Interactive Gambling Act 2001 (Cth) states that it is an offence to provide interactive gambling services to a customer physically present in Australia. The offence applies to both local and foreign interactive gambling services providers. However, realistically only the foreign interactive gambling providers that have some connection to Australia are likely to be prosecuted. Some Australian providers are allowed.
"Interactive gambling services" are defined as "gambling services" provided, in the course of carrying on a business, using:
* an internet carriage service;
* any other carriage service which has at least one point in Australia;
* a broadcasting service;
* another content service; or
* a datacasting service.
"gambling services" are broadly defined as:
* A service for making bets or introducing individuals to other individuals who wish to make bets; or
* A service for the conduct of a lottery or for the supply of lottery tickets; or
* A service for the conduct of a gamewhich is played for anything of value and which involves an element of chance (games “predominantly of skill”, such as computer games, fall outside the definition of gambling services and are not prohibited ; or
* any gambling service (within the ordinary meaning of that expression) that does not fall into any of the above categories.
Express exemptions exist for:
* A telephone betting service.
* A service for online wagering - for example, on a horse race, a harness race, a greyhound race, on an event or a series of events or (provided bets are accepted only before commencement) on a sporting event.
* A public gaming service (that is, specific gaming services provided in licensed pubs, clubs or casinos including linked poker machines in clubs).
* A gambling service associated with a particular broadcasting or datacasting program, or where its sole purpose is to promote goods or services that are advertised on a broadcast service. Examples are interactive TV game shows and promotions with entry fees in the form of a 1900 telephone number.
* Online lotteries and online sale of lottery tickets (but not online scratch or instant lotteries).
* Contracts that are financial products within the meaning of Chapter 7 of the Corporations Act 2001 (Cth) . This includes contracts for options, futures and agreements entered into on a futures market or a futures exchange.
* Exempt services as determined by the Minister.
The Federal Act prohibits the broadcasting, datacasting and publishing of advertisements for interactive gambling services in Australia. An example of publishing an advertisement in Australia would be to place it on a website which is aimed at Australian end-users.
So, at the end of the day we have a situation where the legality is completely obscured. Yet we have tens and tens of thousands of Australians who nonetheless gamble online everyday.
And I really fail to see how playing poker online is different to a casino. In a casino, at least, they take a larger proportion of the rake (i.e. every hand played, the casino takes a certain amount - online, the 'rake' is much smaller and at a fixed cap). Further, if you're playing the video-game slots, (or indeed, blackjack or roulette), the house is always has an advantage to win. You cannot say the same for poker, where the skill of the players is the deciding factor, and the casino really is unconcerned with who wins or loses, because they always get a share of the pot - they just want as many people to play as possible. One of the biggest sites, PokerStars, has around 13 million registered players. Joe Hachem, the first Australian to win the World Series of Poker in 2005 earning him 7.5 million dollars, plays online at PokerStars.
I think it was Lincoln who said that to expose a bad law you should enforce it as strictly as possible. If the laws regarding online gambling in Australia were enforced as strictly as possible they would likely piss a lot of people off which politicians wouldn't be too keen about.
Or they could just recognize that practically the laws aren't enforced, and hence should change.
My 2 cents.
Hiding behind Privilege?
In a topic discussion regarding the discovery process & legal professional privilege, I learned of a case involving Clayton Utz and various other big tobacco companies.
In 2002 Rolph McCabe became the first Australian to win a case against a tobacco company - in this case, British American Tobacco Australiasia (BATA), and his widow Mrs McCabe was awarded damages of $700,000. Justice Eames ruled that BATA had acted in a manner which denied Mrs McCabe a fair trial - that BATA and their solicitor, Clayton Utz, had subverted the process of discovery to prevent a fair trial by destroying thousands of documents, misleading the court as to what had become of material BATA claimed it could not find, and 'warehousing documents.' BATA appealed this decision and it was overturned. However, Victoria's (former) Director of Public Prosecutions wrote to the Attorney General and the ACC regarding BATA and the lawyers involved in the case.
The discussion revolved around a statement in textbook (Calbran & Co) "There are also priniciples and relationship which are so important that the law must protect them, even it means relevant information is not made available to all parties and the courts."
In my opinion, however, the legal professional privilege has been abused to distort the important process of discovery. Interestingly, reading a couple of articles on the topic of legal professional privilege I have found a few critics of the concept altogether!
Jeremy Bentham wrote: "Disclosure of all legally-operative facts, facts investitive or divestitive of right, of all facts on which right depends, such, without any exception, ought to be, such, with a few inconsistent exceptions, actually is, the object of the law. … If falsehood is not favoured by the law, why should concealment? … Expect the lawyer to be serious in his endeavours to extirpate the breed of dishonest litigants! expect the fox-hunter first to be serious in his wishes to extirpate the breed of foxes."
Perhaps it is because I am a budding-lawyer, but professional legal privilege is almost a sacred principle; that your communications (if they fall within the appropriate category) with a client concerning legal advice or impending litigation should be confidential! Whilst I think that there are good criticisms to be made when looking at how the privilege operates (as seen above), there are also many benefits. At the end of the day there is a competing agenda between wanting as much information/evidence as possible for justice and the public interest to be served, and on the other hand protecting confidential communications between a lawyer and his or her client.
In 2002 Rolph McCabe became the first Australian to win a case against a tobacco company - in this case, British American Tobacco Australiasia (BATA), and his widow Mrs McCabe was awarded damages of $700,000. Justice Eames ruled that BATA had acted in a manner which denied Mrs McCabe a fair trial - that BATA and their solicitor, Clayton Utz, had subverted the process of discovery to prevent a fair trial by destroying thousands of documents, misleading the court as to what had become of material BATA claimed it could not find, and 'warehousing documents.' BATA appealed this decision and it was overturned. However, Victoria's (former) Director of Public Prosecutions wrote to the Attorney General and the ACC regarding BATA and the lawyers involved in the case.
The discussion revolved around a statement in textbook (Calbran & Co) "There are also priniciples and relationship which are so important that the law must protect them, even it means relevant information is not made available to all parties and the courts."
In my opinion, however, the legal professional privilege has been abused to distort the important process of discovery. Interestingly, reading a couple of articles on the topic of legal professional privilege I have found a few critics of the concept altogether!
Jeremy Bentham wrote: "Disclosure of all legally-operative facts, facts investitive or divestitive of right, of all facts on which right depends, such, without any exception, ought to be, such, with a few inconsistent exceptions, actually is, the object of the law. … If falsehood is not favoured by the law, why should concealment? … Expect the lawyer to be serious in his endeavours to extirpate the breed of dishonest litigants! expect the fox-hunter first to be serious in his wishes to extirpate the breed of foxes."
Perhaps it is because I am a budding-lawyer, but professional legal privilege is almost a sacred principle; that your communications (if they fall within the appropriate category) with a client concerning legal advice or impending litigation should be confidential! Whilst I think that there are good criticisms to be made when looking at how the privilege operates (as seen above), there are also many benefits. At the end of the day there is a competing agenda between wanting as much information/evidence as possible for justice and the public interest to be served, and on the other hand protecting confidential communications between a lawyer and his or her client.
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