FAVALAWYER BLOG

ON THE BLUNDER OF THE ROLLING STONE

Investigative journalism gets the hook.

In the December 2014 issue of  Rolling Stone (released in November), writer Sabrina Rubin Erdely published a devastating article detailing an alleged gang rape concurring at The University of Virginia chapter of the  Phi Kappa Psi fraternity.  Following the publishing of the article, the UVA campus was rocked with negative reaction, resulting in the short term suspension of  all fraternities on campus. There were cries of condemnation of Greek life by professors and students alike.  Demonstrations occurred in front of the Phi Kappa Psi house, and vandalization followed, with cinder blocks and bottles being thrown through house windows.   Things got so heated and dangerous that several members of the fraternity left the house.

However, cracks soon appeared in the reporting of the story, and ultimately, on December 5, 2014 Rolling Stone issued an apology, citing “discrepancies” in the circumstances of the Story.

On April 5, 2015 the Columbia School of Journalism published a highly critical review of the story and the methodology of Rolling Stone in researching and publishing the story in question.

Now, The University of Virginia chapter of the  Phi Kappa Psi fraternity, has announced its intention of filing a lawsuit against Rolling Stone for its “reckless” reporting.

SO IS A LIBEL SUIT COMING?

By UVA?  NO. (UVA is a governmental entity, and governmental entities cannot sue for defamation.)

By The University of Virginia chapter of the  Phi Kappa Psi fraternity, or individual members?   Hmmm, well, maybe, possibly.

The Libel law standard explains why the is answer on UVA is definitive, while the answer on the fraternity and/or its members  is, well, lawyerish.

Here is the law in Virginia as it pertains to Libel:

(1) a publication about the plaintiff,

(2) of an actionable statement,

(3) with the requisite intent.

So what is an actionable statement?  The courts have defined an “actionable statement” to be a statement that is both false and defamatory , causing damage to the person about whom the statement is made.

The next level of analysis is whether  the fraternity is an identifiable plaintiff, or is it simply a (too) large group?

If the group is too large, suit would be unlikely.

Example: I can’t sue if someone tells a lawyer joke, but if the joke identifies me by name,  is published, with the intent to defame me….well, maybe I could.

Another rub-truth is a complete defense in a libel action, which raises a fascinating angle:   What if the story was factually inaccurate as published, but contained some core truth in terms of what was described.   Might a trial reopen the issue of  fraternity life on campus? Are there stories that could move the needle closer to truth than it exists now? If sued, one would expect Rolling Stone to explore all defenses available to it. I am not suggesting that there are skeletons that would be unearthed, but clearly this is an issue that Phi Kappa Psi will want to explore when considering suit.  Lawsuit discovery can be expansive, and fraternity life at UVA will go back under the microscope if suit is filed.

Finally, plaintiffs in a libel case need to prove damages, which can include lost reputation, loss of income/ employablity, etc.   This will be a challenge as well.   Fraternity members could argue that they are known on campus as members, and thus have been harmed.   But all in all, not an easy mountain to climb.

In the end, these are tough questions for Phi Kappa Psi  and their lawyers to consider and evaluate.  If a suit is indeed filed, they and the public need to be prepared for more information on this issue to be revealed, either at trial, if it gets that far, or through possible press leaks during discovery.

And in the end, maybe that is not such a bad thing, regardless of where the evidence leads.

Contact us at Favaloro Law Offices if you wish to discuss this issue further, or leave a comment below.  We are a full service litigation firm concentrating in medical malpractice and personal injury law.

 

FAVALAWYER BLOG – Are Your Old Emails Part of Your Case?

There has been a lot of buzz around the emails of Hillary Clinton

the last couple of weeks, with the political issue of whether Ms. Clinton should turn over the server that housed her private emails, to recover emails that were deleted.  But what about the legal issues involving emails?

We will look at two of them:

1) Are  old personal emails are discoverable (able to be reviewed by the other side in a lawsuit);

and

2)  Can deleted emails be retrieved?

WAIT… other people might see my old emails ?

 

Yup, maybe.  The rules of evidence provide that any material (“material” clearly now includes email and other social media) that is reasonably calculated to lead to discoverable evidence, must be produced and exchanged between lawyers when requested.  This means that if you have sent an email to a friend discussing or addressing the facts of your case (for instance, a car accident, medical treatment in an injury case, communications to third parties in a divorce case, etc.)  those emails may have to be turned over to the other side when requested in discovery.  Of course, the question of whether the emails in question are discoverable and material may be disputed, whereby a judge will need to resolve whether they need to be produced.   But the lesson is clear:  If you write the email, and hit send, be aware that someone other than the sender may ultimately see it, and that someone might be a judge or juror.  Electronically Stored Information (ESI) has a long shelf life, so here is a good rule of thumb:  If you are involved, or believe that you may be involved in a lawsuit, don’t discuss any part of it electronically, be it via email or social media. To paraphrase, loose fingers sink lawsuits.

No Problem, my emails were deleted!

 

Two things:

First, if the emails were intentionally deleted because you wanted them gone so you didn’t have to produce them, that’s a big no-no.  You could get fined and sanctioned by the court, and your lawyer, if he or she were involved in the deletion scheme , could get fined and disbarred.  So if this is an issue facing you now, and even if you feel that you will die a thousand deaths if anyone sees those emails,  Do. Not. Delete.   The legal term for this spoliation, and it could completely torpedo your case. Work with your lawyer and figure out how to best deal with the situation.

Secondly, if the emails were accidentally deleted, or lost through a computer crash, the court could order recovery measures from the email server in question.  The technology is there to do this, and it will be interesting to see if that comes to fruition in the Hillary Clinton email saga.

So from a legal perspective, every email that you send could reappear in places that you never expected.  You should also realize that the recipient of your email might also be involved in a lawsuit that could implicate your emails, and potentially you.

So here is my lawyerly take in all of this:  Communicate via email only those things that you are willing to say out loud at Thanksgiving Dinner, with all of your family and close friends present.  Business emails are for business, and personal emails should be G-rated. If really personal things need to be communicated, or if you need to vent, communicate it in person (preferably),  or on the phone, or even go old school and send a letter! If you follow these rules, you will sleep much better should your emails reappear in a lawsuit or legal dispute context. Every day on twitter people are apologizing for writing intemperate things, and  it probably is going to get worse. Do a Google News search on “inappropriate emails”,  and you will be shocked at the extent and regularity of this problem.

Electronic communication can’t be beat when it comes to speed and multi-person communication, but speed on the keyboard, like on the road, can be dangerous.  Be careful out there!

If you have any questions about email and social media discovery, or wish to talk about ways to protect your communications in the future, please contact us at Favaloro Law Offices.

 

 

– FAVALAWYER BLOG – The Dress Phenomenon. And what it might mean for future trials.

The dress/Tumblr mania got me to thinking about the implications of it all…

 

dress

 

Q:  Did you review pictures of the the suspect leaving the bank ?

A:  Yes. 

Q: What did you observe in the pictures?

A:  The suspect was wearing a hat, sunglasses, and a white dress with gold Horizontal stripes.

Q: Are you sure?

A: Of course.   The picture was crystal clear.

Closing Argument:

Ladies and gentlemen of the jury, as the evidence clearly shows, on the day of the crime, my client was wearing a blue dress with black stripes.  The eyewitness to this crime clearly identified the thief as wearing a white dress with gold stripes.

If the colors don’t fit, you must acquit!

(kicker:  The colors of the dress in the picture  that appeared to be white and gold , was in fact black and blue.)

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By now, you probably have had your fill of the “dress” story:   A picture posted on Tumblr on Thursday night depicting a blue dress with black stripes that appears to most as white with gold stripes.  By the following Friday Night, over 28 million people had viewed it. A Buzzfeed poll of 3 million people revealed that 70% of those polled incorrectly “saw” the dress as white with gold stripes.

But how will courts and juries deal with misperceptions of things by the eyes of witnesses?  Especially when the witnesses honestly believe that what their eyes are telling their brains is accurate?

At the discretion of the court, expert witnesses can offer testimony to clarify misperceptions.  As in the example above, an expert could testify that although some of the jurors might “see” gold and white in the picture in question, the image is actually that of a blue dress with black stripes.

Wired has an interesting article about the science of why perception misperception exists.

Regardless of how you come out on this, the argument that eyewitness testimony is suspect has been bolstered by this latest social media eruption.  The passion that people have on this, and the incredulous reactions some have when learning that others see it differently from them, is also curious.  I think the realization that something that seems so clear (white and gold), is clearly wrong  (blue and black),  is unsettling, for both  the white/golders and blue/blackers.

The impact of this on our legal system and adjudication of cases remain to be seen.

If you need an experienced trial lawyer, or wish to discuss a case,  please contact us at Favaloro Law Offices . You can reach us 24/7  through email (inquiry@markfavaloro.com), or  with a call/text to 757.708.5720, 0r 781.439. 967

 

-FAVALAWYER BLOG- SLOW DOWN!!!! IT’S SNOWING!!!!!

fp2

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2.25.15

 

Unfortunately, this scene, which happened in 2011 on Route 93 near Salem, NH, is not photo shopped.

Winter 2015 has been relentless in the Northeast (am I right, Beantowners!?) and even the Mid Atlantic and Southeast  have been visited by Frosty the Snow Machine in February.   Along with the snow and ice come new and unnecessarily exciting times behind the wheel for veteran and newbie snow(auto)mobilers alike.

The Federal Highway Administration (FHWA) has compiled data on the risks of this type of winter activity. According to the FHWA, the numbers are staggering. Between 2002 and 2012, 23% (approx. 1,312,000) of all auto crashes were weather related.  Of those weather related crashes, approximately 540,000 involved snow and/or ice on the pavement. 

So what are the top 10 ways to avoid snow related driving nightmares? Other than moving to Key West for the winter???…

#1: Stay home.   Enjoy some quality time in front of the fire with old (or new) friends

Fireplace_Burning

 

#2:   (see #1)

#3:  Drive slower than your grandmother does in the summer.

Cliché, but true: speed kills. Plus your car or truck brakes will likely ignore you when you touch them with snow on the ground.

#4.  Don’t follow too closely.

(See #3 about your brakes)

#5:  Don’t slam on your brakes.

Sensing a pattern here ?  Your brakes will break up (see what I did there…) with you during snowstorm driving.  The great communication that  used to exist  between the two of you during sunnier days will yield to reactions ranging from just ignoring you to rebelling against you. You just can’t trust ’em when the snow sticks on the ground; you have to take baby steps with your brakes, and go slowly, and hope to repair the relationship as you go down the road.

#6.  If do you start to skid, release the hounds!

And by hounds, I mean the brakes.  If you have room to let the car naturally decelerate, do it until you can regain control. If you are going to hit something soon, pump the brakes (1 second on, 2 seconds off) until you are able to steer again.

#7:  Don’t travel alone.

Why? because someone has to push the car when it gets stuck, that’s why.

#8:  Make sure you have a mobile phone, with a car charger, in the car.

If you get stuck, or worse, the ability to reach help is essential.

#9  If  you think you need new tires, make sure they are on the car before Thanksgiving.

NOTHING worse than bald tires on snow and ice in terms of controlling your vehicle.

#10 Make sure the old jalopy is ready for winter.

Get new windshield wipers, see #9, and make sure that your windshield wiper fluid is full.  If you have experienced the sinking feeling (as I have) of calling on the wiper fluid, and getting the “eeeeh” empty fluid motor sound, then you know how important it is to replenish your precious automobile fluids.

 

With preparation, and practice, you will become a better snowtime driver.   If something does go wrong, call Favaloro Law Offices for a free consultation.   You can reach us 24/7 at 757.708.5720, 0r at 757.390.4370 during office hours. And hey, if you are stuck, and we are nearby, will help push you out of that snowbank.

 

-FAVALAWYER BLOG – WHERE HAS MY PRIVACY GONE?

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In the old days (full disclosure: I am old)  when we talked and worried about invasion of privacy, (remember that phrase ?)  we would worry about wiretaps and long distance spying, and rummaging through our papers and trash.

But now, the loss of privacy is much more subtle.   Say hello to the new “spies”

That’s right, doing what you are doing right now, reading a blog on the Internet, as well as where you were before you landed on this page, and where you will go when you leave, is likely creating a trail of history that is particular to you. Retailers, marketers and others can mine this data, and who knows, you may start to receive emails and see messages on sites that you visit that remarkably reference products or places that may interest you.

The Federal Trade Commission is examining the limits of that question right now. Check out this article from the Verge:

Well, is that bad? I guess that depends on your point of view, and how much of your habitual life you are willing to share.  From our perspective as lawyers, the Internet, and all it reveals about, and of, us, imposes a duty in litigation cases to advise our clients about the perils of revealing too much online.  Similarly, we also have a duty to investigate our case opponents to find out as much as we ethically can that can help our case.  The face of discovery is changing.

Brave New World meets 1984.

At Favaloro Law Offices we remain committed to keeping on the technological edge as changes come to the practice of law.  Feel free to contact us with any questions, you may have, or if you have a case that you would like us to evaluate.

-FAVALAWYER BLOG – COAL ASH

Wednesday, March 12, 2014

Coal Ash Spills

Virginia is now examining the effects of the coal ash spill that recently occurred in North Carolina:

http://www.wncn.com/story/24935678/va-taking-long-term-review-of-nc-coal-ash-spill

What is coal ash?

Simply put, coal ash is the wate byprouduct of an energy producing coal plant.

The industry has been largely unregulated, but in Janauary of 2014, the Department of Justice on behalf of the EPA lodged a consent decree with the U.S. District Court for the District of Columbia that requires the EPA to publish a final rule addressing the disposal of coal ash by Dec. 19, 2014. The settlement came as a result of a lawsuit brought by 10 public interest groups and the Moapa Band of Paiutes against the EPA for its failure to review and revise its regulations pertaining to coal ash. The settlement does not dictate the content of the final regulation, but it confirms that the agency will finalize a rule by a date certain after years of delay.

If there has ever been a time to celebrate a victory on coal ash over the last three decades, today is the day.

The Kingston coal ash spill in December 2008.(TVA Photo)

EPA’s coal ash rulemaking was triggered by the largest toxic waste spill in U.S. history when a billion gallons of coal ashburst through a dam at the TVA Kingston Fossil Plant in Roane County, Tennessee. While damage to health and the environment had been occurring for decades at hundreds of sites throughout the nation, the headline-making disaster brought a commitment in 2009 from then-Administrator Lisa Jackson to establish federal disposal standards within the year.

But, amazingly, the catastrophic collapse of the TVA dam was not enough to push EPA to complete its rulemaking. Only after Earthjustice and other public health and environmental groups sued did the EPA commit to a deadline for a final rule and break the logjam of delay and dangerous deferral.

This consent decree ends the inexcusable and destructive 30-year delay in establishing rules for safe disposal of the nation’s second largest industrial waste stream. No other industry in this country, save the mining industry, has a license to dump toxic waste in our water at the massive scale enjoyed by our coal-burning power plants. The industry estimates that they have generated 3 billion tons of coal ash since the beginning of the last century. Not an ounce has been subject to disposal regulations that ensure its safe, long-term disposal. This, we hope, will change in 2014.

While the consent decree sets an enforceable deadline for the publication of the coal ash rule, it does not dictate its content. The EPA still has discretion to finalize either of the two proposals it published in June 2010.

The benefits of a strong coal ash rule for our health and environment are immense—and this ruling comes none too soon to protect the air, water and safety of communities living near more than 1,000 massive coal ash impoundments, ponds, dry landfills and other coal ash dumpsites.

http://earthjustice.org/blog/2014-january/celebrating-an-historic-agreement-on-coal-ash

At FAVALORO LAW OFFICES we remain committed to protecting individuals, neighborhoods and communities when environmental disaster hits. Contact us if you or your family and friends has encountered such a situation.