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Is this actually a terrible/lovely decision or pearl clutching by the Daily Beast? 'In short, a convicted defendant, like Jones, can be held responsible and kept in prison if his state-appointed lawyer provided ineffective counsel for his appeal." https://www.thedailybeast.com/the-supreme-court-just-said-in-in-shinn-v-ramirez-that-evidence-of-innocence-is-not-enough
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Jun 2, 2022 20:14
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My wife has been working with a consultant for a few months now on a big project, and as its drawing to a close the consultant asked my wife's boss if it would be ok to make her a job offer after the project ends. My wife's supervisor broke the news to her on Friday, encouraged her to consider the offer, and then unceremoniously terminated her without cause yesterday. They cited an issue in a performance review from last year, but when challenged just said its an at will employment state and they've decided to terminate effective the end of the week. They did offer an ok severance package though. The consultant would still like to offer her a job, and now that she's free he would like her to start immediately and also work on the same project she was already on, just under his employment. The consultant doesn't have any other major projects scheduled until this project ends, so if she can't go to work for him on this project he can't offer her work for another two months. It would be very convenient if she could take the position immediately, because that would make the severance essentially free money, which is always nice. So the legal question is can my wife be immediately hired by the consultant to work on the same project for the company she was just terminated by? This is in Massachusetts.
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Jun 2, 2022 22:32
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Nix Panicus posted:My wife has been working with a consultant for a few months now on a big project, and as its drawing to a close the consultant asked my wife's boss if it would be ok to make her a job offer after the project ends. My wife's supervisor broke the news to her on Friday, encouraged her to consider the offer, and then unceremoniously terminated her without cause yesterday. They cited an issue in a performance review from last year, but when challenged just said its an at will employment state and they've decided to terminate effective the end of the week. They did offer an ok severance package though. If you want an actual answer, start by calling a Massachusetts Employment Attorney.
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Jun 2, 2022 22:40
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It sounds like they fired her expecting her to do that. Do you have some specific reason to be concerned? I know if she's a government employee she would run afoul of the ethics laws for public employees in my state. I just checked and I don't see anything like that for Massachusetts, it's all gift rules, but I'm no loving lawyer. Harold Fjord fucked around with this message at 22:48 on Jun 2, 2022 |
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Jun 2, 2022 22:43
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toplitzin posted:Is this actually a terrible/lovely decision or pearl clutching by the Daily Beast? Good question! A defendant in a criminal case has a constitutional right to a lawyer. If he or she cannot afford a lawyer, the constitution requires the government to provide a free or mostly free lawyer. A subset of this constitutional right to a lawyer is a constitutional right to an "effective" lawyer. That is, the free lawyer must possess sufficient skills and abilities to provide a defense above a certain standard and actually provide assistance above that minimum standard. Most of the time this is no big deal. In my area, public defenders are the best most experienced and most talented defense attorneys in town. They're also well funded. And lawyers in general try to do a good job because we believe in the system. And we get to gently caress the police in our own way, which is nice. Sometimes, though, an attorney may provide "ineffective" assistance to a criminal defendant during trial. When a defendant wants to claim that his lawyer provided substandard help, the constitution requires that there is some procedure for a defendant to file an IAC where he can argue ineffective assistance of counsel. Now, importantly, the defendant claiming IAC does not mean the defendant actually received substandard help during trial. Whether or not the defendant truthfully received ineffective assistance is a question that (usually, unless you're in bloody WA) gets litigated. So a defendant will get a second lawyer to argue that the first lawyer was ineffective. If charged with a state crime, the federal constitution requires that the state courts gets first crack at this question. So the IAC claim gets litigated in the same forum that heard the original trial. As I said earlier, each state must have a state procedure for this, and while all states are different, they're all pretty similar (except bloody WA). How does the claim get litigated? Generally the defendant needs to show that his first lawyer made a serious error that prejudiced him in some way, usually also in a way that would have affected the verdict. For instance, the first lawyer simply forgot to interview his alibi witness and didn't call the alibi witness at trial. Oops, that defendant is going to get a do-over. As another example, the first lawyer didn't interview the defendant's third grade teacher, who would have testified that the defendant was a nice boy in the third grade. That probably had nothing to do with anything, so no do-over. This is the point at which the defendants can develop their "factual record" of the IAC claim. Then, just for fun, some states allow a defendant to get a third lawyer to argue that the second lawyer was ineffective in attaching the first lawyer. After this IAC claim gets litigated in state court, a federal law permits defendants in certain circumstances to then come to federal court arguing that some state procedure violated the federal constitutional requirement that these state procedures must be fair. The question presented in this new case was whether the federal procedure allowed for a review of all of the previously presented evidence, or whether the federal procedure allowed for an entirely new factual record, including basically redoing the entire underlying trial. As you may imagine, redoing all of the previous litigation took ages, backlogged courts, and was almost always totally useless repetition. But, some defendants on rare occasions - one in a million - prevailed here when they could get some new evidence in on this, their third (or fourth) crack at developing a factual record. This appeal concerned only this latter question, whether the federal procedures allowed for vast re-litigation of already litigated issues. SCOTUS said no, the proper procedure is for a federal judge to review the previously presented evidence and make a decision. This would still protect the defendants who thought they had a claim, but they said that the main protections come from that state court hearing. I happen to agree with SCOTUS on this one. Keep in mind these procedures take years and years and years. If a defendant has actual helpful evidence*, it ought to come to light within the first decade of a case. * That his lawyer screwed up in trial, like not calling his buddy the alibi witness to the stand! IAC is a claim that trial counsel screwed up, nothing else! This case deals with the last procedural step of that very specific question! There are other procedures for post conviction DNA testing and whatnot! I'm not talking about those, I'm talking about IAC! BigHead fucked around with this message at 01:47 on Jun 3, 2022 |
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Jun 2, 2022 23:26
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Nix Panicus posted:My wife has been working with a consultant for a few months now on a big project, and as its drawing to a close the consultant asked my wife's boss if it would be ok to make her a job offer after the project ends. My wife's supervisor broke the news to her on Friday, encouraged her to consider the offer, and then unceremoniously terminated her without cause yesterday. They cited an issue in a performance review from last year, but when challenged just said its an at will employment state and they've decided to terminate effective the end of the week. They did offer an ok severance package though. Who are you concerned is breaking the law here, and against who? It sounds like the company already said they are fine with it.
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Jun 2, 2022 23:31
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BigHead posted:If a defendant has actual helpful evidence, it ought to come to light within the first decade of a case. There's been a neverending parade of people convicted of e.g. murder and rape decades ago, for whom evidence samples are now tested against DNA databases and the actual rapist/murderer can be identified, proving innocence. Cold cases are infamous. Convictions are commonly based on unreliable testimony and nothing else. Police departments are belatedly revealed to have falsified evidence for decades. Why should there be some time limit on proving yourself innocent? Expediency is grotesque but at least understandable, but this idea that new evidence just isn't possible after ten years doesn't hold up.
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Jun 2, 2022 23:43
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Let's also note that these sort of federal appeals are remarkably expensive, and so the only folks regularly pursuing them are 1) folks with money to afford lawyers for a federal appeal, who very likely therefore also had private counsel at trial (which, despite BigFish eliding over this, are typically massively better resourced and able to devote more time, energy, and money into a specific case than a public defender), and 2) those sentenced to death, who get federal appellate counsel provided. Folks in bucket (1) don't typically have defenders who sleep through their trial, fail to examine an alibi, or fail to note that their client is legally mentally retarded (I know we're not to use that word, but it's the term of art here) so as to be conditionally barred from the death penalty, to list three examples of behavior that the Texas Court of Criminal Appeals has found didn't justify overturning a death penalty for folks in bucket (2) which a federal court later overruled. So as a practical matter, this opinion largely only matters in death penalty cases. Also keep in mind that whatever is true in Washington, the states rushing to kill people in bucket (2) like Texas, Oklahoma, Alabama, etc. have neither well-funded public defender systems nor state courts that give a drat about rights, because that's always been the Fed's job. This opinion basically says "well the same state that wants to execute you says they gave you a fair trial. That's good enough. Even if you are able to prove that was wrong, a federal court is now barred from considering that proof." So yes, it actually is as evil and callous as it seems.
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Jun 3, 2022 00:02
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Leperflesh posted:There's been a neverending parade of people convicted of e.g. murder and rape decades ago, for whom evidence samples are now tested against DNA databases and the actual rapist/murderer can be identified, proving innocence. Cold cases are infamous. Convictions are commonly based on unreliable testimony and nothing else. Police departments are belatedly revealed to have falsified evidence for decades. Why should there be some time limit on proving yourself innocent? Expediency is grotesque but at least understandable, but this idea that new evidence just isn't possible after ten years doesn't hold up. Also a good question! There are different procedures - and different SCOTUS cases - for post conviction DNA testing. Ditto for new evidence that springs to life after the cases, like a second suspect suddenly confesses. Double ditto for the prosecutors failing to disclose new evidence. IAC claims are for evidence that exists at the time of trial, like a trial attorney failed to interview a witness. Before trial, everyone knows who the witness is and the gist of his statement, the attorney was just an idiot for not calling him to the stand. You don't need a literal decade of high level litigation to present a five minute interview of an alibi witness (imo). An IAC claimant would have to show 1) the first attorney knew or should have known of the witness, 2) didn't interview the witness, 3) was ineffective in not interviewing the witness, and 4) the witness's statement would have had a realistic chance of exculpating the defendant. Remember, IAC is for trial deficiencies. Contrast that with, like, cases where new advances in DNA testing technology allow for something brand new that comes into existence much later. These are not trial deficiencies. Different ideas with different analysis, though you're right they're related. My post (and the original question) was about IAC claims. IAC deals with the very specific question of a lawyer's performance at trial, nothing else. The case that dude asked about deals with the very last procedural step of that question, nothing else. There are plenty of other post conviction avenues to go down, all of which are good and I fully support! \/\/ Yikesaroo friend! Luckily we're still in the factual development stage of this post so you can read the follow up where I addressed the concern I think you're having! BigHead fucked around with this message at 01:32 on Jun 3, 2022 |
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Jun 3, 2022 00:23
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BigHead posted:This appeal concerned only this latter question, whether the federal procedures allowed for vast re-litigation of already litigated issues. SCOTUS said no, the proper procedure is for a federal judge to review the previously presented evidence and make a decision. This would still protect the defendants who thought they had a claim, but they said that the main protections come from that state court hearing. I hope you're merely criminally ignorant of how racist this take is.
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Jun 3, 2022 00:59
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mmm yes please tattoo "evidence of innocence is not enough" on my forehead unghhhh
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Jun 3, 2022 02:12
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Hey legal thread I have something I need help with. I live in my parents house they have a mortgage and we live in California. Recently my mom died and my dad has lung cancer he just got back today and the doctor gave him 2-6 months left. I was planning on adopting the mortgage to continue living here but could use some help on the specifics so I don't end up homeless. Is it necessary to make a will? Thanks in advance.
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Jun 3, 2022 04:34
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TheMopeSquad posted:Hey legal thread I have something I need help with. I live in my parents house they have a mortgage and we live in California. Recently my mom died and my dad has lung cancer he just got back today and the doctor gave him 2-6 months left. I was planning on adopting the mortgage to continue living here but could use some help on the specifics so I don't end up homeless. Is it necessary to make a will? Thanks in advance. Ianal so can't help but poo poo that sucks, I'm really sorry.
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Jun 3, 2022 06:56
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TheMopeSquad posted:Hey legal thread I have something I need help with. I live in my parents house they have a mortgage and we live in California. Recently my mom died and my dad has lung cancer he just got back today and the doctor gave him 2-6 months left. I was planning on adopting the mortgage to continue living here but could use some help on the specifics so I don't end up homeless. Is it necessary to make a will? Thanks in advance. I’m a banker, not a lawyer. As long as payments keep getting made the bank will leave you alone for quite a while. Is this a mortgage that you could afford if you were buying a house with that mortgage payment? Not all mortgages are assumable. If it is a VA, FHA, or USDA loan it will be, otherwise it likely is not. You will have to credit and income qualify in order to assume the loan if it is assumable. Are there other siblings or heirs you need to be taking care of here or is it just you? Are there other assets in the estate?
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Jun 3, 2022 07:04
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TheMopeSquad posted:Hey legal thread I have something I need help with. I live in my parents house they have a mortgage and we live in California. Recently my mom died and my dad has lung cancer he just got back today and the doctor gave him 2-6 months left. I was planning on adopting the mortgage to continue living here but could use some help on the specifics so I don't end up homeless. Is it necessary to make a will? Thanks in advance. I'm really sorry, that's a poo poo situation. Do you have siblings? Did your mother have life insurance? Does your father have life insurance?
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Jun 3, 2022 08:01
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TheMopeSquad posted:Hey legal thread I have something I need help with. I live in my parents house they have a mortgage and we live in California. Recently my mom died and my dad has lung cancer he just got back today and the doctor gave him 2-6 months left. I was planning on adopting the mortgage to continue living here but could use some help on the specifics so I don't end up homeless. Is it necessary to make a will? Thanks in advance. I mean yes he absolutely needs to make a will. I don’t know if it fixes that issue but he’s gotta do it.
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Jun 3, 2022 12:32
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Definitely get with an estate attorney pronto.
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Jun 3, 2022 13:04
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Yeah. Absolutely sympathies, that's horrible. Do what you can to keep your head right through it all. But as to the law, seconding that you need to find a good trusts and estates attorney, and hopefully one with some real estate knowledge too to talk you through whatever needs to be done on the mortgage. You're in a personally awful situation, but not a legally awful one - this is doable.
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Jun 3, 2022 14:09
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What does "consideration" mean with respect to non-compete agreements? Can a company add one years later without my consent?
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Jun 3, 2022 14:13
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Azuth0667 posted:What does "consideration" mean with respect to non-compete agreements? Can a company add one years later without my consent? 
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Jun 3, 2022 14:15
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Azuth0667 posted:What does "consideration" mean with respect to non-compete agreements? Can a company add one years later without my consent? The concept of one party unilaterally adding poo poo to an agreement seems to run counter to the whole point of an agreement.
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Jun 3, 2022 14:19
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No loving lawyer answer: As I understand it "consideration" is whatever is being exchanged of value. We can't have contract that says I have to give you $100,000 for no reason, you have to be doing something too. So as I understand it if they want to add clauses to a contract they need to be giving you something, in addition to you agreeing. Thinking further I would think you would need to agree to changes but maybe additional consideration isn't really required the consideration is whatever work you're doing and whatever money you get. Obviously offering extra money or whatever is a good way to get you to agree to the new term they want to add, though Also, I've gleaned from this thread that the enforceability of non-competes is pretty complicated anyway. Harold Fjord fucked around with this message at 14:25 on Jun 3, 2022 |
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Jun 3, 2022 14:21
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Outrail posted:The concept of one party unilaterally adding poo poo to an agreement seems to run counter to the whole point of an agreement. …and yet an employer could, you know, just decide not to keep paying you (new consideration) if you don’t sign a new agreement. …which is to say that some states allow an employer to demand a new noncompete or similar in exchange for nothing more than continued employment, others do not and require some additional consideration (here’s your $100 signing bonus for the agreement, otherwise you’re out). …that’s about as far as you can say in general; more would require at least a state to speak in state-specific generalities.
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Jun 3, 2022 14:33
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lol it took my contracts class forever to understand consideration and the prof was so mad about it.Azuth0667 posted:What does "consideration" mean with respect to non-compete agreements? Can a company add one years later without my consent? They can't "add one" because that doesn't make sense in the context of consideration. What did they "add"
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Jun 3, 2022 16:45
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BigHead posted:
The problem with this is twofold. 1st, sometimes the issue is that there's no other way, because of wildly inadequate state court proceedings, to introduce after discovered evidence than to allege trial counsel should have found it. Like, give the guy a chance we can prove innocence, but only way to get that chance is to allege iac. 2nd, sometimes collusion or bad faith defense is only discovered years and years later. Basically beware of the word "should". If everything happened like it "should" we wouldn't need a legal system in the first place. This nexus is one of the points that most clearly indicates that we don't have a justice system. The system isn't interested in actually achieving justice. The goal is to present enough semblance of justice to keep everyone from private violence, moderated by other concerns like cost and time limitations, politics, racism and bigotry, etc. If justice were the goal, the imprisonment of the innocent would be fundamentally intolerable, period, and it isn’t.
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Jun 3, 2022 17:03
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EwokEntourage posted:lol it took my contracts class forever to understand consideration and the prof was so mad about it. They added a non-compete agreement to the employment contract, is my reading.
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Jun 3, 2022 20:11
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Azuth0667 posted:What does "consideration" mean with respect to non-compete agreements? Can a company add one years later without my consent? to make a long story short: 1) the law enforces contracts, not promises. the distinction between a contract and a promise is we both make promises. i promise to mow your lawn: not enforceable. i promise to mow your lawn and you promise to pay me $10? enforceable. note that the default rule is the court does not care how much the consideration is: i can contract to mow your lawn in exchange for a kick in the balls (even if i'm not into that). 2) it is possible for an employer to get tripped up on consideration when trying to get existing employees to sign a non-compete. if you just go up to an existing employee and ask them to sign one, that may not be enforceable because the company didn't offer anything for it: you promised not to compete with them, they promised nothing, oops it's an unenforceable promise not a contract. companies will sometimes say "in exchange for continued employment" but that is risky because that's an illusory promise (they can still fire you at any time), they're better off giving you a token bonus. a company can never just add something to your contract without you agreeing to it (there are ways to sort of get around this, but usually only if you planned in advance - e.g. your credit card company being able to change your balance/APR). if they want you suddenly covered by a non-compete, they've got to get your signature somehow.
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Jun 3, 2022 20:23
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They usually couple a severance package with all of the poo poo they want to enforce against an ex worker.
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Jun 3, 2022 20:25
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euphronius posted:They usually couple a severance package with all of the poo poo they want to enforce against an ex worker. usually that's a release of all claims/covenant not to sue/non-disclosure/non-disparagement though, i've never heard of trying to stick a non-compete into a severance agreement though i suppose i shouldn't be shocked if someone tried
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Jun 3, 2022 20:29
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EwokEntourage posted:lol it took my contracts class forever to understand consideration and the prof was so mad about it. Essentially there was a mass exodus of administrative folks and the new ones stated we now have non-competes. I don't think I could jump to another university in the US if I wanted to considering the job market. However, from the questions during the meeting this apparently would cover if I wanted to jump to industry. E: I haven't had to sign a contract since I was granted tenure.
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Jun 3, 2022 21:38
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Some jobs are immune from covenants not to compete based on what judges think. So that’s an issue as well .
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Jun 3, 2022 22:05
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Regarding non-competes, could company A pay key employees of company B a lump sum to just quit their jobs and agree to never work there again with the goal of putting company B out of business? Or would accepting that payment constitute "working" for company A?
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Jun 3, 2022 22:56
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SkunkDuster posted:Regarding non-competes, could company A pay key employees of company B a lump sum to just quit their jobs and agree to never work there again with the goal of putting company B out of business? Or would accepting that payment constitute "working" for company A? That’s probably going to be a tort of intentional interference with business relations or unfair competition in that case. However, buying the company completely and paying a lump sum for owners to not compete is totally normal.
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Jun 3, 2022 23:06
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Azuth0667 posted:Essentially there was a mass exodus of administrative folks and the new ones stated we now have non-competes. I don't think I could jump to another university in the US if I wanted to considering the job market. However, from the questions during the meeting this apparently would cover if I wanted to jump to industry. It sounds like the new admin staff have non competes (which sounds a stupid thing to put on admin staff). They cannot unilaterally make you subject to one (and lol at trying to get a tenured prof to sign one). Also, A non compete, if enforceable, would have limits on the scope, time, and geographic restrictions it imposes. If you left the state they probably couldn’t enforce it, unless you were working on something very specific and unique to that university and went somewhere else to do the same thing, but even then seems unlikely Enforcing one from someone going from academia to private industry seems like it’d be an uphill battle
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Jun 3, 2022 23:41
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euphronius posted:Some jobs are immune from covenants not to compete based on what judges think. So that’s an issue as well . the answer to the question “what profession would lawyers and judges rule simply must be immune to non competes” is left to the reader 
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Jun 3, 2022 23:47
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EwokEntourage posted:It sounds like the new admin staff have non competes (which sounds a stupid thing to put on admin staff). They cannot unilaterally make you subject to one (and lol at trying to get a tenured prof to sign one). I've thought about job changes considering the current trajectory of education in the US and come up with three things: 1. Go industry and considering my specialization this would be drug design/clinical trials. 2. Go to a different university outside the US, China/Australia/EU are the only ones that would work. 3. Get an MD/DO and work on the healthcare side of things.
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Jun 3, 2022 23:58
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EwokEntourage posted:They cannot unilaterally make you subject to one (and lol at trying to get a tenured prof to sign one). This isn’t really true. There are many states where continued employment is sufficient consideration for a new covenant not to compete. Typically this happens with the employer giving you the non compete and telling you to sign it or be fired. There are also many states where separate consideration (10 bucks) is required for the new noncompete. And then there’s California where they are just unenforceable. Unless you’re clever and design them as nonsolicits or protecting trade secret information etc.
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Jun 4, 2022 01:04
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evilweasel posted:the answer to the question “what profession would lawyers and judges rule simply must be immune to non competes” is left to the reader It’s worse than that - it’s technically a violation of professional ethics to sign one, at least without some sort of carve out.
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Jun 4, 2022 04:16
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Arcturas posted:This isn’t really true. There are many states where continued employment is sufficient consideration for a new covenant not to compete. Typically this happens with the employer giving you the non compete and telling you to sign it or be fired. That’s not unilateral tho, because you have the option to sign and stay employed or quit and go compete. There still has to be offer and acceptance of the non compete, in addition to consideration.
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Jun 4, 2022 06:41
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evilweasel posted:to make a long story short: How interesting. I never touch US contract law, but over here we don't really have a principle of consideration to make an agreement enforceable. Unless this is entirely specific to employment contracts? Employers do not have the ability to unilaterally change labour contracts here. If they were to add non-compete clauses they are mostly not enforceable at the outset, but unless the employee agrees to the new contract the old one is valid indefinitely. If the employer insists on a new contract, that's a unfounded dismissal and lawsuit from the union. Where it gets really fun is a subset of IP issues in labour contracts with non-compete clauses. Contracts in general though are pretty simple. An offer is binding the instant it is made, even if it is a one-sided offer (or gift) and is enforceable from the second the other side agrees to it. Obviously this gets hosed up in practice, but in principle you could sell your house for nothing with a verbal offer. Of course, the remedy for this is that you can always ask the courts to invalidate unbalanced deals for a whole number of reasons through a statutory "validity of deals" law. Mostly between private persons or as consumer protection. Businesses are oftentimes hosed.
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Jun 4, 2022 08:35
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