American constitutional jurisprudence

Modern constitutional jurisprudence is frustrating. There is so much attention paid to precedent, and so relatively little to the text of the Constitution. In law school I was very much struck by this experience. I did what I could in the classroom and on exams to resist this current.

In these hearings on Neil Gorsuch’s nomination to the Supreme Court, some U.S. senators invoke the concept of “super precedent.” I never heard such a thing mentioned in law school, nor have I seen any appeal to its authority in Supreme Court holdings. For some, “super precedent” is unassailable law that has been settled by multiple Supreme Court holdings.

Plessy v. Ferguson and its “separate but equal” holding was also buttressed by followup holdings. Brown v. Board of Education overturned that apple cart and ushered in a whole new era.

There is wisdom, I think, in embracing humility instead, and dispatching the ridiculous concept of “super precedent”. Human beings can and do sometimes get it very wrong. Let the axis upon which our best jurists turn be the text of the Constitution, and not primarily precedent.

David Williams, Esq., is CEO of Presto Servers, Inc.  He can be reached at dwilliams@prestoservers.com.

Some thoughts on Wikileaks, the CIA and the surveillance state

As America’s “foreign intelligence service”, the CIA has historically been given a relatively free and unrestrained hand to operate. This latitude exists because the CIA’s outward-looking mission benefits from a degree of secrecy, and because express and implied legal barriers exist that prohibit the CIA from operating in the domestic and law enforcement spheres.  Maintaining this wall between intelligence-gathering for national security purposes, and domestic law enforcement and intelligence has been of paramount importance in preserving our liberties.

Recently, Wikileaks revealed a trove a documents, purportedly from the CIA, that demonstrate the expansive degree to which the CIA has helped engineer hacking tools into everyday American consumer hardware and software products.  To be sure, some of these surveillance tools are being used on legitimate, foreign targets of CIA espionage.  However, there is serious concern that these tools can and indeed have been employed to spy on American citizens.

The sweep of surveillance powers that exist outside of traditional domestic law enforcement are terrifying to contemplate in their own right. They are even more terrifying when we contemplate their use on American citizens instead of foreign targets.

We already have examples of the NSA sharing raw intelligence with law enforcement agencies like the FBI and DEA, all without the restraints of the 4th amendment. That should have given us great pause. We are literally a turn of the wrist away from turnkey tyranny.

When institutions like the NSA and CIA with sweeping surveillance powers demonstrate that they cannot be trusted in the use of that awesome power, perhaps it is time that they be radically altered.

David Williams, Esq., is CEO of Presto Servers, Inc.  He can be reached at dwilliams@prestoservers.com.

Interstate Subpoenas: What You Don’t Know Can Hurt You

You are litigating a case and need to produce records or obtain deposition testimony from an out-of-state witness.  Easy peasy, right?

Not so fast. If your case is being litigated in federal court, then yes Rule 45 amendments make the process fairly simple. However, if you are litigating in a state court, getting a subpoena on an out-of-state witness can be tricky.

You might even be tempted to just go ahead and serve your trial state subpoena on the out-of-state witness.  Don’t.  In most cases, an out-of-state subpoena has no power to compel a witness in the discovery state jurisdiction. Increasingly, state bars are frowning on the practice of serving out-of-state subpoenas, and may even consider it an ethical violation. Serving a subpoena an attorney knows has no power to compel in the witness’s jurisdiction may be a violation of the attorney’s obligation to truthfulness under Model Rule 8.4.

The North Carolina State Bar certainly takes that opinion. RPC236 and the 2010 FEO #2 sound prohibitions against lawyers making misrepresentations to the subpoena recipient that the attorney has the legal authority to issue the subpoena, or misleading the recipient as to whether compliance is required by law. The NC State Bar goes as far as to call this behavior a misuse of subpoena power and a violation of Model Rule 8.4(c) against dishonesty, fraud, deceit and misrepresentation.

Other states like Vermont and Virginia have similarly explicit opinions. Even in other states without specific advisory opinions or rules in this area, prudence may dictate that an attorney not serve a subpoena that has no power to compel if the clear language of the subpoena indicates compulsion under penalty of law.

Fortunately, there is a solution: subpoena domestication. Simply put, subpoena domestication involves taking an out-of-state subpoena from the trial or litigating state, and transforming it into a subpoena that has the force of law in the witness or discovery state. Subpoena domestication used to be in most states a cumbersome and expensive process, whereby commissions and letters rogatory from the trial court and independent actions by licensed attorneys in the discovery state were required. Today, most states have adopted more streamlined processes for subpoena domestication.

Consequently, there is no good reason to avoid proper domestication of interstate subpoenas. Don’t get tagged by your state bar or disciplinary board for ethics violations. Don’t get called out by the other side with a subpoena that has zero force of law.

Get those subpoenas domesticated, practitioners!

David Williams, Esq., is Chief Executive Officer of Presto Servers, Inc.  He can be reached at dwilliams@prestoservers.com.

Courts of Equity – A Brief History

Most people are familiar with the general operation of courts of law in civil cases.  A plaintiff sues a defendant for an injury or breach and seeks monetary damages.  The court then applies rules of black letter statutory and common law to the facts, and delivers a result.  This is the realm of the court of law.

What many don’t understand, however, is that there also exists a court of equity.  Unlike courts of law, courts of equity historically were not governed by the black letter law, nor did they (absent some English exceptions) deliver monetary remedies.  Instead, equity courts applied principles of justice and fairness that derived from natural law, which consists of laws and rights that emanate from the natural order of things, and are discoverable.

The early equity courts developed in England, and were called chancery courts, so named because they were administered by the King’s Lord Chancellor.  Their authority derived from the King’s authority.  They were the “keeper of the King’s conscience.”  Courts of law and courts of chancery (equity) were separate courts, operating independently.  Where a court of law delivered a result that was unfair or compounded an injustice, equity courts could and did act to mitigate or alter altogether harsh outcomes.  For hundreds of years, the English equity courts wielded considerable power, and were largely unrestrained by black letter law or precedent.

Interestingly, there also existed in England a criminal court of equity, more commonly known as the Star Chamber.  Like chancery courts, the Star Chamber’s power also derived from the King.  The Star Chamber was originally established to bring to justice powerful persons whose positions might otherwise allow them to escape punishment in courts of law.  This court had no formal indictments, and required a defendant to testify as to the charges against him.  Its deliberations were secret. Over time, the Star Chamber’s power was abused, and it became vilified as an institution which trampled basic protections and individual rights that we take for granted today.  Indeed, our own Constitution was in part adopted as a reaction against these abuses, and led to the adoption of the privilege against self-incrimination contained in the 5th Amendment.  Generally speaking, today there isn’t a criminal court of equity in the United States, although there are certain equitable powers, such as pardons for convicts or sentence commutations, which can be exercised through the executive power of the President or a governor.

Conversely, equitable powers in the realm of civil litigation are alive and well, albeit much changed from their chancery predecessors.  Today, most American courts are combined courts of equity and courts of law.  They are no longer separate courts.  Additionally, modern equity courts do operate under some substantive and procedural constraints.  They are not unbound from law and precedent as were earlier chancery courts.  When exercised today, equitable powers generally take the form of non-monetary remedies, such as injunctions, writs and orders for specific performance, and are invoked where a monetary outcome alone would be considered inadequate.  Equitable decisions are informed by the Twelve Maxims of Equity, which include “equity delights in equality” and “equity will not suffer a wrong to be without a remedy.”  From some of these principles we get many of our legal presumptions.  For instance, the strong presumption in many states in divorce cases that an equitable division of marital property is an equal division is but one of these.

I hope this article has proven to be a concise and illuminating description of the evolution and power of the equity court.  It is by no means complete.  None of the foregoing should be taken as legal advice.  Please consult with a competent attorney if you are engaged in a dispute that might involve equitable remedies.

David Williams, J.D., is Chief Executive Officer of Presto Servers, Inc.  He can be reached by email at dwilliams@prestoservers.com.

 

International Authentication: Understanding the Apostille

What is an apostille? Simply put, an apostille is a method of authenticating documents, defined by treaty, for use in nations that are signatories to that 1961 Hague Convention treaty. Apostilles are therefore a means of international document authentication, and are increasingly important in a world that continues to become more and more connected through commerce. International adoptions, business transactions, and extensions of credit all often require obtaining an apostille. Presently, there are 105 member states that are signatories to this Hague Convention, including the United States and Mexico. Canada is not a signatory.

Prior to the 1961 treaty convention, international document authentication generally required strings of consular certifications, with the Department of State being the consular authority in the U.S. Since the treaty, member states may choose their own Competent Authorities (CAs) for issuing apostilles. In the United States, those CAs include each of the fifty state departments of state along with the US Department of State.

It is important to note that apostilles do not certify or authenticate the content or quality of the documents. Indeed, in 2009 the Hague Convention added language to apostilled documents that explicitly makes this point. Instead, apostilles only certify the signature on the document by comparing it to the signature that is on file for that signer.

Notarized documents, and official documents issued by some courts and certain administrative agencies are among the documents that are eligible for an apostille. Take care, however, as it is not always easy to know which documents require a notarized signature and which ones don’t. Additionally, some documents require translation, or an acknowledgment that they are a true and verified copy.

I hope this short explanation and review of the apostille proves helpful. This means of authentication has already become a very important part of facilitating international transactions in the modern world.

David Williams, J.D., is Chief Executive Officer of Presto Servers, Inc.  He can be reached by email at dwilliams@prestoservers.com.

 

Serving Process on the Business Entity

Fundamentally, the requirements for serving process on a business entity derive from the same constitutional obligations that attach to serving legal process on an individual.  Before there can be deprivation of life, liberty, or property, a defendant must receive notice and be given an opportunity to be heard in a court of law.  This obligation, which arises out of the 5th and 14th amendments to the US Constitution, is reflected in tests all federal and state rules relating to process must meet: 1) is the procedural rule reasonably calculated to provide a party with notice, and 2) is the application of the rule likely to produce actual notice?

Beyond the constitutional obligation, additional sources of authority that further define requirements for process are found in federal and state statutes and rules of procedure, and in case law.  Like service on individual persons, personal service of process is also the gold standard of serving notice.  However, a business entity is a legal fiction of sorts – a legal person but not a corporeal, or flesh and blood person.  How then does one in practice serve this legal entity?

The Federal Rules of Civil Procedure, specifically FRCP 4, lay out the requirements for serving process in federal jurisdictions.  Many state statutes have rules on process that are similar to the federal ones, and in some cases mirror them quite closely.  The FRCP does allow for process according to state rules of procedure, too, so do check the rules of the state where your court has jurisdiction.  As regards business entities, FRCP 4(h) allows for personal service of process on an officer, a managing or general agent, or another agent explicitly authorized by appointment or by law.  By all these methods, serving the person is equivalent to serving the principal, or business entity.

Service on a company officer entails personally serving a company’s chief executive officer, chairman, treasurer or some other officer on the board of a corporation.  For entities like partnerships, LLCs or LLPs, a managing agent or member is analogous.

Additionally, federal and state rules allow for service on an agent explicitly authorized by appointment.  Most of the time, this takes the form of the registered agent.  Indeed, most states require business entities to appoint a registered agent for accepting process in exchange for the privilege of doing business as an entity in that state, and can revoke the right of the company to operate for failure to do so.

An agent authorized by law often takes the form of a state Secretary of State’s office.  When a plaintiff has tried and failed to serve process on a business defendant through that entity’s officer(s) or registered agent, courts will sometimes allow service to be effected by delivering papers on the Secretary of State’s office.

The foregoing is a brief sketch of the particulars for serving legal process on business entities.  It should not be construed as legal counsel or advice.  I have not included a discussion of sole proprietors as legally the person and the business are one and the same.  I hope you find this short outline illuminating.

David Williams, J.D., is Chief Executive Officer of Presto Servers, Inc.  He can be reached by email at dwilliams@prestoservers.com.

Understanding Service of Process on US Military Personnel

You’ve got a defendant in the United States military you need served with process.  Easy, right?  Not necessarily.  If the defendant happens to live in the U.S. and outside the confines of a military installation, then indeed the jurisdictional and service of process nuances involved are generally similar to what you encounter with civilian defendants.  However, in many cases the service member lives on a military base, and sometimes that installation is overseas.  In these situations, there are procedural hurdles to executing legal process on the service member beyond the typical jurisdictional issues that may exist.

First, is there jurisdiction?

Jurisdiction regards whether or not a court may extend its power to decide cases over a particular person or thing.  Exercising a court’s authority over a person is known as personal jurisdiction, and exercising that authority over a thing is called in rem jurisdiction.  A court in a given state always has general jurisdiction over a person who has made his or her domicile in that state.  Domicile is not the same thing as residence, as it has to do with where a person intends to make his or her home.  For instance, a college student who grew up in Arizona and goes to school in New York has a domicile of Arizona.  Arizona is this person’s domicile until he or she expresses an intention otherwise.  A military service member who grew up and was recruited into the armed forces in California and is stationed in Fort Bragg, North Carolina has a domicile of California.

When a court has general jurisdiction over a person, that means that a plaintiff from anywhere in the world can sue that defendant in a state or federal court in that state of domicile for a particular cause-of-action.  In the case of the hypothetical service member domiciled in California, an estranged wife who lives in Michigan may sue the husband for divorce in California’s state courts.  She might be able to sue for divorce in other state courts, too, but at a minimum she may sue in California because courts there have general jurisdiction over the husband because of his domicile.

However, a court may be able to get personal jurisdiction over a defendant even if it doesn’t have general jurisdiction.  Personally serving a defendant with process in the forum state can sometimes establish jurisdiction.  This is colloquially known as “gotcha jurisdiction”.  In our hypothetical example, if the estranged wife has her husband served in Michigan while he happens to be there, a Michigan court could possibly get jurisdiction over the husband and hear the suit.  Be forewarned, however, that “gotcha jurisdiction” is not looked upon favorably by all courts, and the Supreme Court in Asahi was evenly split on the efficacy of this traditional basis of jurisdiction.

Additionally, state and federal courts in a given state can also get jurisdiction over a person through what is known as a long-arm statute.  These are laws which extend a court’s jurisdictional reach for particular causes of action, and for this reason are specific not general.  For instance, every state has a long-arm statute for motor vehicle offenses.  If you’re operating an automobile on a state’s highways then you will be said to have consented to the state’s jurisdiction by availing yourself of its roadways.  For child support, there is the Uniform Interstate Family Support Act (UIFSA), which in most states is employed to get long-arm jurisdiction over a mother or father who isn’t domiciled in a particular state but has children there.

Lastly, there is the “minimum contacts” basis of personal jurisdiction as first laid out in 1945 by the Supreme Court in International Shoe.  If a court finds that a person has voluntarily made sufficient minimum contacts within a state then that defendant may be made to answer to a court in that forum state.  Minimum contacts analysis can be quite involved, and if a particular cause-of-action entails such jurisdictional complexities it should be handled by a competent attorney.

Actually Serving Process

Assuming a court indeed has jurisdiction, a defendant still needs to be served with notice of the lawsuit before the case can proceed.  If the service member lives in the U.S. but outside of the local military base, then service of process issues are generally the same as they would be for a regular civilian defendant.

However, sometimes the service member lives on the military base itself.  In these situations, serving the defendant has additional complexities.  First, call the installation’s legal office and find out if the base is under concurrent (i.e., federal and state) or purely federal jurisdiction.  If the base only has federal jurisdiction attached, then the service member may more easily evade process as the base authorities are not required to allow process serving in a state suit.  If the jurisdiction is concurrent, and the state of the installation and the state of the court that seeks process are one and the same, then  the base authorities must permit service of process, subject to “reasonable restrictions.”  If the state of the installation and state of the court seeking process are different, the base command can not be compelled to allow process in a state civil suit.  Where cooperation is required, the base authorities will first give the service member an opportunity to meet the process server at an arranged place and time.  The service member is not required to adhere to such arrangements.

International Process on Military Personnel

Where the service of process is international and involves a service member on an overseas military installation, there are even more wrinkles, and we must first look to treaty law, customary international law and Status of Forces Agreements (SOFAs) between the United States and the nation that hosts the American military base.

The 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents binds 73 member states and 69 non-member contracting states, and provides mechanisms for serving process on overseas defendants.  Among these are service by a country’s designated authority (known as the Central Authority), service by international registered mail with return receipt, and personal service by local agent.  Service may sometimes be accomplished through letters rogatory, and in more limited cases using service by publication.

Using a nation’s designated Central Authority (CA) for serving process can be a good option for some, but does have its drawbacks.  The CA is always one-stop shopping, so to speak, and is thus handled by a single entity, usually (but not always) a governmental organ.  Typically, serving process through the CA entails significant delay.  Additionally, the specific SOFA may limit the extent to which a country’s CA may enter an American military installation to serve process.

Service by registered mail with return receipt can be a relatively quick and inexpensive option, however, it is also more easily evaded by defendants.  Additionally, some countries like Germany, Japan, China and Russia disallow process by registered mail through local law, and have also formally taken exception to it through the Hague Convention.

Personal service by a local agent is usually faster than through the CA, but is often more expensive.  Letters rogatory involve formal requests from an American court to a court in another country, and are a more traditional, pre-Hague means of executing process.  However, the delays with letters rogatory can be quite long, and sometimes a foreign court’s notions of notice and due process don’t comport with our own, and may prove insufficient from the vantage of the U.S. court.

Sometimes, a U.S. court will permit service by publication, like a notice in a well-circulated armed forces journal or periodical, but this is generally done only when other attempts at service have been made and exhausted.

Service of process on any defendant is a complicated affair, and when the defendant is also a military service member these complications are multiplied.  In writing this article, I hope that I’ve sufficiently painted with broad brushstrokes the outline of some of these nuances to notice and civil procedure.  In no way should the foregoing be taken as legal advice.  If you are wrestling with any of these jurisdictional and due process complexities, please engage the services of an attorney well-versed in questions of civil procedure.

David Williams, J.D., is Chief Executive Officer of Presto Servers, Inc.  He can be reached by email at dwilliams@prestoservers.com.

Top 20 Free Mobile Apps for Lawyers and Other Legal Professionals

Mobile applications are revolutionizing the way many Americans work, and attorneys and other legal professionals are no exception.  Even as I write this, I am discovering new and interesting apps that heretofore had escaped my notice.  I hope you find this reference helpful.

Before I jump headfirst into my top twenty list, a few words of caution.  I have excluded “free apps” that are tied to paid subscription services, so you will not find any of the quite excellent apps put out by companies like LexisNexis or Westlaw.  Also, while I hope you find many of the apps to be great tools in your toolchest, they should not be taken as substitutes for official sources of law.  Finally, if you’re of a mind to read more about these apps, or discover others yourself, I encourage you to check out the following mobile app search engines and stores (depending on your particular device):  Apple Web Apps, Android Market, Amazon App Store, Android Zoom, Blackberry App Word, Mobile Apps for Law, and uQuery.

Without further ado, here are the top 20 free (or almost-free) legal mobile app faves (in alphabetical order):

Box.net is a wonderful free app that lets you view, store, edit and share files in a wide variety of formats.  It is available for Apple and Android devices and gives you 5GB of storage.

CLE Mobile allows attorneys to listen to their CLE courses and even submit completed lessons for CLE credit.  This free app is available on Apple devices, and is great for meeting those continuing education requirements for the lawyer who is on the go.

CourtDays is a free and convenient Apple app that lets you quickly calculate the number of calendar days or court days before and after a particular date.  Quite useful when you just have to know those filing deadlines!

DragonDictation is free for Apple and Blackberry devices.  It utilizes voice recognition to dictate messages, and can also be used to update your status on select social networks like Facebook and Twitter.

DroidLaw is a free app for the Android that gives you access to the Federal Rules of Civil Procedure, the Rules of Evidence, the Rules of Appellate Procedure, the Rules of Criminal Procedure, and the Rules of Bankruptcy Procedure.  State statutory codes are available as a paid add-on.

Dropbox offers external cloud-based storage.  Files are automatically retrievable from all your Dropbox-connected devices.  This free mobile app is available on Apple, Android and Blackberry devices.  It also requires a free Dropbox account.

Evernote is a free, award-winning app available for Apple, Android and Blackberry devices that allows you to capture recordings, photos and notes into a readily searchable database.  It also has a useful to-do list manager and can be synchronized to your desktop computer.

Fastcase is a free legal search database that is available for Apple devices.  Searches of cases and statutes can be performed using citations, keywords and phrases.  Boolean operators are a plus.

Goodreader is an Apple mobile app that does cost $4.99, but allows you to read and annotate text, PDF, Excel, Word and PowerPoint files.  It also integrates nicely with Dropbox, Googledocs, Box.net and FTP servers.

LawStack is a free reference for Apple devices that includes the US Constitution, the Federal Rules of Civil Procedure, the Rules of Criminal Procedure, the Rules of Appellate Procedure, the Rules of Evidence, and the Rules of Bankruptcy Procedure.

LegalEdge keeps you informed on current legal developments including news alerts, updates and case filing from all over the United States.  It is a free mobile app for Apple devices.

LogMeIn is a free app for Apple and Android devices that allows you to remotely log into your computer.  Very useful when you need to extend your reach or just have to have that file.

MegaReader gives you access to nearly 2 million free books.  You can customize for color, font size and spacing.  The cost is $1.99.  It is available for Apple devices.

MobileTranscript is a free app for Apple devices that lets attorneys review depositions and court transcripts.  You can also log your billable time for export.

MyCongress is a free app for Apple devices that gives you very specific information on members of Congress, including their news releases, videos, bills and Twitter feeds.

MyPoint turns your mobile Apple device into a remote control for slide presentations on Windows and MacOS X systems.  It also includes a display of current and future slides, which is quite handy when the screen is behind the speaker.  This app is free and is available on Apple devices.  A free companion application needs to be installed on your computer as well.

OpenRegs is a free app for Apple devices that gives you handy access to regulations published on the Federal Register.  You can find proposed and final rule-making notices, or browse regulations by agency or comment period.

OyezToday is a free app that provides you the latest informaiton on Supreme Court cases, including audio of oral arguments, transcripts, and copies of the actual decisions.  It is available for Apple devices, but an Android app is under development.

RECALLS.GOV provides information on recall announcements from the FDA, NHTSA, Consumer Products Safety Commission, and the Department of Agriculture.  It is a free Android app available from www.recalls.gov.

Rulebook is a free app for Apple devices that provides you ready access to federal and state rules of procedure, and also includes Bluebook rules.

WeirdLaws isn’t one of the top twenty, but is a lot of fun so I decided to include it nevertheless.  Admittedly it’s not particularly useful, but it can serve as a great conversation starter.  Citations aren’t provided, so please take what you read with a grain of salt.  Is it really illegal in Maryland to take a lion to the movies?

David Williams, J.D., is Chief Executive Officer of Presto Servers, Inc.  He can be reached by email at dwilliams@prestoservers.com