The Collateral Source Rule

One of the more subtle but key underpinnings of the tort law system for compensating people for accidents is the collateral source rule. 

While it is somewhat more involved, the basic idea is that when your own insurance covers you for an injury, for example, for medical bills, or to replace your damaged car or house, or paying you disability payments when you lose income for a period of time, that you can sue for the full amount of the harm without deducting insurance covered losses.

Closely related are the doctrines that say that medical providers have a lien against what you recover in a lawsuit to recover damages that they paid for, and the right of an insurer to bring a lawsuit, called a subrogation claim, against someone whose tortious actions gave rise to the insurance claim to get back what it paid to the insured for that loss, if the insured doesn't sue.

As a practical matter, subrogation claims are uncommon and the lawyers who usually defend insureds who are sued hate bringing them, because the dollar amounts are often modest and they are loss motivated to bring them (and have less of the relevant information in many cases) than an insured who actually suffered the loss.

In substance, a very large share of personal injury and property damage tort cases are cases where the defense lawyers and defense judgment are paid for by one insurance company, and where the medical expenses and property damage claims were mostly paid by another another insurance company or credit extending medical provider with a lien on what was paid for those damages, and where a large share of the non-economic damages awarded go towards paying a contingent fee of the Plaintiff's attorney.

The system provides rough justice, but the benefits of this convoluted system that arises from the collateral source rule, over the system that would evolve without it, are dubious. 

A variety of reforms have been proposed and tried to rework this arrangement, but they're beyond the scope of this post.

Statutes Of Limitations By State For Ordinary Car Accidents

The U.S. has considerable variation in the statute of limitations that applies to lawsuits arising from ordinary car accidents involving competent adults and no government officials or claims against the government.

Two states (ME and ND) allow you to wait six years. One state gives you five years (MO). Four states (UT, WY, NE, and OH) allow four years.

Two states (TN and LA) limit you to one year. 

The other 41 states and the District of Columbia have statutes of limitations that are two or three years. (Incidentally, while Colorado allows three years for car accidents, it allows only two years for most all other personal injury lawsuits.)

There isn't a clear partisan pattern to the state by state differences. I'm interested in finding research, if there is any, on what practical impact the different rules have on tort liability for car accidents. 

WARNING: THIS POST IS NOT LEGAL ADVICE. IF YOU NEED TO KNOW, TALK TO A LAWYER RETAINED TO ANALYZE YOUR INDIVIDUAL CASE.

This particular statute of limitations is a decent bellwether, because it is the single most common type of tort lawsuit, and because the date upon which it begins to run is usually very clear.

According to data from the Bureau of Justice Statistics, around 60% of tort lawsuits are related to car accidents.

What other data on tort lawsuits is available from the same study (using 1991-1992 data)?

* The majority of cases disposed were auto torts (complaints charging damage caused by a motor vehicle). 

* Complex cases involving medical malpractice, product liability or toxic substance together made up about 10% of all tort cases. 

* About three-quarters of the cases were disposed through an agreed settlement or voluntary dismissal; 3% by a trial verdict. 

* Twenty-eight percent of the approximately 378,000 tort cases were uncontested, (the defendant did not file an answer to the complaint). 

* Half the tort cases were disposed within 14 months. 

* Auto tort cases were settled in a shorter period than all other cases. 

* Tort cases involved primarily individuals suing other individuals. 

* Half of the all tort cases involved three or more litigants. 

During a 1-year period ending in 1992, State courts of general jurisdiction in the Nation's 75 largest counties disposed of an estimated 378,000 tort cases involving 1.4 million plaintiffs and defendants. Individuals suing businesses accounted for a third of all cases. The average time courts took to dispose of a tort case was just over 11/2 years. Trial verdicts accounted for 3% of all tort cases disposed. 

These are some of the results from a study of tort cases in State courts. The basis is a representative sample of the 75 courts where nearly half of all tort cases nationwide are handled, making this the closest that exists to a tort study national in scope. 

These survey data establish a benchmark against which future tort reforms can be evaluated. Moreover, survey results provide a baseline that individual courts can use for comparison. 

The sample 

The estimated 378,000 tort cases were disposed from July 1, 1991 to June 30, 1992, in State general jurisdiction courts. A representative sample of 18,000 tort cases was drawn from court files in 45 of the Nation's 75 largest counties. The 45 are located in 21 States. The sample excluded Federal courts, which account for about 4% of all tort cases, and State courts outside the 75 largest counties. (Federal tort case jurisdiction is limited to claims that involve more than $50,000 in damages and in which plaintiffs and defendants are from different States. About a third of tort cases disposed in Federal court in 1992 involved product liability.) Also excluded were tort cases disposed in States' limited jurisdiction court. (Limited jurisdiction courts have jurisdiction over cases where the amount at stake is below a certain threshold (typically $500 to $25,000.) 

Types of tort cases 

In tort cases, plaintiffs allege injury, loss, or damage from negligent or intentional acts of the defendants. Types of cases vary. Over the 1-year period, the two most frequent kinds disposed were from automobile accidents (60%) and premises liability cases alleging harm from inadequately maintained or dangerous property (17%). Other types of cases included those that are a primary focus of current tort reform activity: product liability (3%), toxic substance (2%), and medical malpractice cases (5%). In 92% of tort cases, the plaintiff cited personal injury as the type of harm involved. Property damage was cited in 5%, and financial loss or injury to reputation was claimed in the remaining 3%. 

The majority of tort cases involving personal injury (64%) or property damage (60%) were auto torts. 

Types of tort case dispositions 

The most common method of tort case disposition was an agreed settlement (73%) About 10% of the cases were dismissed for a lack of prosecution or failure to serve a complaint on the defendant. In the vast majority of tort cases, litigants settled the complaint without going to trial. Therefore, details of tort settlements are unknown. Little systematic data are available regarding why cases are settled or the cost of settlement for either party. 

A jury (2%) or bench (1%) trial verdict disposed relatively few cases. Medical malpractice claims (7%) were more likely than product or premises liability, auto, or toxic substance cases to be disposed by a jury or bench trial.  

Uncontested tort cases 

Most tort litigants had an attorney represent them; 3% of the involved a pro se litigant who represented himself or herself. In 28% of tort cases, the defendant failed to file an answer to the complaint. Failure to answer in a timely manner (usually within 30 to 45 days) gives the plaintiff the right to file a motion for a default judgment. Such uncontested tort cases comprised 81% of all cases disposed by default judgments. Most uncontested cases were disposed by agreed settlement (65%) or dismissed for lack of prosecution or failure to serve the complaint on the defendant (23%).

Getting Rich By Being Wrong: How Do We Prevent Stupid Patients From Unfairly Enriching Stupid Doctors?

This post sets forth the bare outlines of an economic paradox. I don't know if it is novel or has a name. I may research this and explore it further later.

Suppose that there are two ways to respond to a health condition and health care consumers are free to choose between them. Let's call one the "conventional approach" and the other the "novel approach."

Without being rigorous, we'll illustrate a set of facts where this paradox is present with an example, not the exact conditions when this paradox is present.

Suppose that 99% of the relevant healthcare practitioners favor the conventional approach because their greater experience and knowledge causes them to favor this conclusion, while only 95% of patients, who are less certain and less well informed favor the conventional approach. 

Thus, 1% of the relevant healthcare practitioners favor the novel approach, while 5% of patients favor the novel approach.

Further suppose that healthcare practitioners are ethical and do not offer an approach to their patients which they believe is not in the best interests of their patients. And, suppose that for every 100 relevant health care professionals there are 100,000 patients.

Now, run the numbers. There are 99 health care professionals using the conventional approach serving 95,000 patients (960 patients per professional). There is 1 health care professional using the novel approach serving 5,000 patients (5,000 patients per professional).

A health care professional with more than five times as many patients each can probably charge more and thus will make more profits by favoring the novel approach than by favoring the conventional approach, even if, as the facts suggest, the conventional approach is much more likely to be in the best interests of the patients, objectively, than the novel approach.

Certainly, in some rare cases, the health care professional using the novel approach is a genius with unique insight who is the one acting in the best interests of the patient. Indeed, given how new ideas are adopted, it will usually be the case that the economics will be similar at first whether or not the new idea is a good one, although later on, as the evidence becomes more clear, more practitioners will adopt the novel approach causing the economics to change.

We don't have a problem with early adopters of a good novel approach making an extraordinary profit. This is similar to what we already do mechanically with patent rights.

But we don't want early adopters of a bad novel approach to receive undue profit, particularly because there is some irreducible level of stupidity and distrust of valid evidence in the general population of patients, and so, the economic upside to continuing to provide a bad novel approach is likely to be very sustained and extreme especially as some early adopters of the novel approach abandon it as unwise.

There are two very familiar ways to discourage this possibility.

A Pre-Approval Policy

One is to require the novel approach to be approved by an agency like the Food and Drug Administration in advance to be safe and effective relative to the status quo, in ethically conducted clinical trials in advance before the novel approach can be used. 

The pre-approval policy imposes costs of obtaining approval that counterbalance the excess profits associated with being an early adopter of the novel approach if it is approved, and is a total loss not compensated by subsequent early adopter profits, if the novel approach is not approved. 

The pre-approval policy assures that the risk of a bad novel approach being permitted and causing harm is pretty much as low as it is humanly possible to be. But while it properly discourages bad novel approaches, it may provide too weak of an incentive to adopt a good novel approach, since the costs of approval are still significant, and the early adopter reward after the novel approach is permitted may be very modest if the successful clinical trial wins over the practitioners using the conventional approach greatly reducing the excess profits for being an early adopter in the absence of a patent.

Also, the pre-approval process denies the benefit of the good novel approach both to patients waiting during the pre-approval process, and if excess profits are boosted with a patent but the early adopters don't have the capacity to provide the patented profit widely enough, to post-approval patients who would benefit from the approved good novel approach who aren't able to access the novel approach either due to high cost or due to limited capacity to provide it due to intellectual property rights.

A Tort Liability Policy

The other option would be to simply impose malpractice liability on practitioners who take a bad novel approach to their patients that causes harm to the patients when the threshold determination is made that doing so constitutes malpractice.

Tort liability also serves to create a powerful incentive for practitioners using the conventional approach to transition to a good novel approach so that they don't face malpractice liability when the threshold determination is made that the good novel approach is better in the amount harm suffered by the patients.

So far, so good, but how does one determine what the threshold is in that circumstance, and under what circumstances should a patient be free to waive that liability with informed consent about the risks that the approach chosen is the wrong one.

A hybrid approach might be to have the government do clinical trials at its own expense of novel approaches. Once a clinical trial is completed, it becomes malpractice to use a bad novel approach, and it also becomes malpractice to fail to use a good novel approach.

This doesn't fully resolve the original problem in the time period from when the novel approach is discovered to when the clinical trial is completed. But it does lower the malpractice stakes greatly for informed practitioners, powerfully shuts down bad novel approaches, and powerfully encourages the rapid adoption of good novel approaches.

Dual Track Waivers and Clinical Trials

A waiver with informed consent while a clinical trial is pending isn't the same as a regular clinical trial. 

In a clinical trial, patients enroll hoping that they will get a good novel treatment (which prescreening non-human clinical trials make more likely), but knowing that they might end up in a control group. They are taking the risk that the novel approach, if they get it is a bad one, balanced against the possible good fortune that the novel approach is a bad one but they are assigned to the control group and don't suffer as a result. But, they are also taking the risk that the novel approach is good but they don't get it because they are in the control group, balanced against the hope driving people to volunteer that the novel approach is good and they receive the novel approach. When novel approaches are more likely to be good than bad, the clinical trial participants are at a disadvantage.

But, in a waiver with informed consent, the patient knows for a certainty that they are getting the novel treatment. The patient is taking the risk that the novel approach is a bad one, but not the risk that they aren't actually getting the novel approach. When the novel approaches are more likely to be good than bad, the non-participants in the trial benefit and no one will sign up for the trial absent non-intrinsic incentives.

Then we have to consider the patient stupidity factor. In this dual regime of clinical trial participants and waiver patients, when there is evidence that the novel treatment is likely to be bad, smart people won't do waivers and will not sign up for clinical trials, while stupid people will do waivers and the clinical trials may not have enough enrollees to proceed.

But when the novel treatment is likely to be good, smart people will want to do a waiver, smart people will not want to do the clinical trial, and stupid people, disproportionately will not want to do either a clinical trial or a waiver because they are more likely to wrongly think that the novel treatment will be bad.

In conclusion, allowing patient waivers when it is clearly more likely that a novel treatment will be good, or is clearly more likely that a novel treatment will be bad, due to some sort of prescreening procedure, doesn't really work.

Clinical Trials With Free Choice While The Trials Are Pending Without Waivers

Another option would be to not allow waivers of malpractice liability and instead impose strict liability on the practitioners for harm caused to patients by using a bad novel treatment that has not yet been clinically approved. Thus, instead of having patients who aren't in a good position to evaluate the risk assume that risk, the better informed and knowledgable practitioner bears the risk that the novel treatment will be a bad one.

This would discourage lots of practitioners from using unapproved novel approaches and would probably make the patient charges to administer unapproved novel approaches high, but will leave the patients who could afford to take that risk the ability to do so, knowing that if it doesn't work out that they will be compensated by the practitioner making them pay the high treatment fees. This could work out to be a back door waiver, in effect, but it would prevent clinical trials from going empty, and it would allow a bold genius practitioner and their patient to benefit from a good novel approach sooner. 

A Multi-Stage Rule Regarding Waivers With Special Clinical Trial Group Treatment

An even more intermediate position would prohibit waivers when there isn't enough preliminary clinical trial data available for a patient to make a decision with informed consent and instead impose strict liability on the practitioner at that stage. But, perhaps waivers could be allowed once the late stage clinical trial was fully enrolled, perhaps with a premium price, strict liability as to the clinical trial participants (who are also taking the control group risk) and no cost of participation for clinical trial participants, and a shift of the risk from practitioner to patient for people who waive with informed consent at that stage outside a clinical trial group. This sounds close to the correct rule.

Some Reforms To Address Abuses By Law Enforcement And Corrections Officers (With Meta Note)

Some of these are bigger, and some smaller, they aren't necessarily all mutually consistent.

Hold Institutions Responsible

Institutions will make better personnel decisions and adopt better policies if they have liability for wrongdoing.

* Adapt the "takings" jurisprudence to wrongful deprivations of life and liberty by a government or someone acting on its behalf, without regard to intent or knowledge. Thus, the entity whose collective actions and inactions by its employees and agents caused someone to be wrongfully deprived of their rights to life and liberty would be entitled to full compensatory damages and attorneys' fees without regard to the intent of the person doing so or their good faith. 

For example, suppose an innocent person is incarcerated despite a full trial in which there a no constitutional rights violated. The innocent person is still entitled to full compensatory damages and attorneys' fees. Similarly, an innocent person shot and killed due to a good faith mistake of law enforcement is still entitled to full compensatory damages and attorneys' fees. Similarly, if an innocent person's property is damaged by law enforcement to apprehend someone, the individual suffering the harm is entitled to compensation.

Of course, this would still not allow compensation for justifiable use of force from the person whose actions justified the use of force.

* Make governments vicariously liable under the doctrine of respondiat superior for the civil rights violations of their agents and employees. This is true of all other kinds of torts. In practice, almost all governments indemnify their agents and employees fully even though they are not required to, in these contexts, so it wouldn't have a big fiscal impact. 

Possibly allow governments an affirmative defense to vicariously liability if they immediately suspend an officer, fire them before allowing them to return to duty, and prosecute any crime committed which the government alleges makes the action ultra vires.

Holding Individual Civil Rights Violators Responsible

* Repeal the relatively recent, court created doctrine of qualified immunity.

* Reduce the threshold of intent for personal liability for civil rights violations from intentional conduct to at least negligent conduct. For example, civil rights liability should be imposed if a law enforcement officer failed to use ordinary care to avoid raiding a wrong address, or arresting the wrong defendant.

* Clarify the lack of absolute immunity for prosecutors in connection with investigative roles. Some case law makes this distinction but it is buried in contested case law.

* Narrow justifications for the use of deadly force by law enforcement, and the justifications and processes for use of situations posing an elevated risk of  use of deadly force or abuse such as "no knock" raids.

* Do not allow employers to indemnify individuals for amounts that they are required to pay, routinely bring subrogation claims against civil rights violators. Do not allow the right to subrogation to be waived absent a court approved ex post hearing to show that the settlement with the civil rights violator is justified. Do not allow indemnification and subrogation terms to be tie barred in settlements to the merits.

* Make public pensions available an an asset available to civil right creditors and to governments or their insurers bringing subrogation claims against civil right violators.

Make Circumstances Constituting Sexual Abuse Easier To Prove

* Make it a felony for a law enforcement or corrections officer to have sexual interactions with someone in custody, or someone subject to the officer's jurisdiction with whom the officer does not have an existing relationship while not in custody.

* Prohibit mixed gender cavity searches.

* Narrow the circumstances in which strip searches and cavity searchers are allowed.

Reduce Booking And Arrest And Pre-Trial Incarceration

* Prohibit booking and jail (including related strip searches) for offenses that don't carry incarceration is an ultimate penalty.

* Eliminate incarceration or arrest as an option for most municipal ordinance violations and non-violent petty offenses and misdemeanors.

* Create a civil remedy of removal of someone from a situation that is not a crime, e.g. to defuse a situation, that is not reported as an arrest.

* Compensate people not timely convicted for time incarcerated and for attorneys' fees incurred if not represented by a public defender (or some amount in lieu of actual compensation to be a rough justice approximation) as a matter of course.

* Dramatically curtail the use of cash bonds with the vast majority of cases resulting in pre-trial release on personal recognizance with check in measures, or with pre-trial detention without bond.

* Mandate significantly better conditions in pre-trial detention than detention pursuant to a conviction.

* Make screening and treatment for drug withdrawal routine and mandatory for incarcerated persons.

* Do not incarcerate pregnant people in ordinary jails and prisons. Unless absolutely necessary, defer a sentence of incarceration until after birth and nursing, and when absolutely necessary do so in special medical units and do not require women to undergo labor and delivery in chains.

* Don't put law enforcement officers in schools.

* Don't resort to the criminal justice system for misconduct by children outside extremely limited circumstances set by policies known to school officials and law enforcement.

Get "Bad Apples" Out Of Law Enforcement

* Require law enforcement to have "at will" employment even if unionized or otherwise subject to civil servant protections.

* Authorize the finder of fact (jury or judge as they case may be) to remove a civil rights violator from his or her employment and bar him or her from future positions in law enforcement.

* Develop a national black list of people who have been found liable for serious civil rights violations from serving in future law enforcement positions.

* Develop a national database, a bit like a credit report, of instances in which a court or investigation has found a law enforcement officer to be untruthful. Require it to be shared as part of Brady disclosures in every case in which a law enforcement officer testifies.

* Develop a national database on complaints filed against law enforcement officers and their disposition.

* Disqualify officers with prior domestic violence, other violent crime, animal cruelty, fraud, or public trust crime or ethics code violations or protection orders or courts martial offenses from serving for the next ten years after the sentence is complete.

* Mandatory notification of legal ethics boards for Brady violations by prosecutors (i.e. failures to disclose exonerating evidence to the defense), following findings in court cases.

* Mandatory notification of law enforcement registry following findings if court cases that an arrest or search or seizure was made without probable cause.

* Routinely investigate officers and agencies with a history of complaints and violations. Create an option to place an agency under receivership when its violations cross a threshold.

* Routinely bring federal prosecutions for civil rights violations when unduly lenient local sentences are imposed or there are local acquittals in the face of compelling video, physical, DNA, confession, or other compelling evidence.

* Actively discipline prosecutors and judges for ethical violations showing disregard for civil rights.

Processes

* Vest prosecutions of law enforcement officers in an agency that does not work with and rely on the cooperation of law enforcement officers in the same unit on a daily basis, ideally an independent state agency co-managed with the public defenders office with its own investigators that is also charged with ethics investigations.

* Allow judges and prosecutors (who otherwise have absolute immunity from liability for their conduct) to have civil liability in any matter where the judge or prosecutor is found by an ethical body or criminal prosecution to have committed an ethical violation or crime, with the statute of limitations running from notice to the affecting person that the finding was made in the ethical or criminal case.

* Remand cases that are reversed on appeal to a new judge as a matter of course in all cases.

* Reduce sentences and overturn final convictions as a matter of course when new substantive statute or court rulings invalidate the sentence imposed as a possible sentence.

* Repeal many of the detailed statutory limitations on habeas corpus relief.

Meta Note

This is post 8100 at Wash Park Prophet. I have made 9914 posts at Wash Park Prophet and its sister blog Dispatches From Turtle Island, combined. There are also 34 posts at my incomplete serial novel blog, Wash Park Poet, for a grand total of 9952 posts on the blogger platform.

This blog is the original one and started on July 3, 2005, not quite fifteen years ago, so I have posted, on average, a little less than 13 posts a week for the last fifteen years.

A Threat To Sue For An Actual Personal Injury Is Not Extortion In Colorado

I see this issue come up from time to time, so it is worthwhile to note a published decision of the Colorado Court Of Appeals on point: People v. Knox, 2019 COA 152, ¶¶ 2-4 and 48-51. The ruling says in the pertinent parts (emphasis added) that:

¶ 2 On November 26, 2014, Amber Diedrichs-Giffin was turning left in her car when she heard a “bang” as Knox forcefully placed her hands on the hood of the car. When Diedrichs-Giffin asked if Knox was okay, Knox responded that her “leg kind of hurts.” . . . Diedrichs-Giffin provided her insurance and contact information; however, Knox declined to contact law enforcement officials and asked for “weed” or money, stating, “We could settle this now.” Knox walked away — seemingly uninjured — after Diedrichs-Giffin directed Knox to contact Diedrichs-Giffin’s insurance company.  

¶ 3 Shortly afterward, Diedrichs-Giffin called 911 to report the accident, expressing her uncertainty about who was at fault. The dispatcher told her that, without an injury, she did not need to file a report; but if Knox contacted law enforcement officials later, they could refer to the recording of Diedrichs-Giffin’s call.  

¶ 4 Later the same day, Knox sent Diedrichs-Giffin a series of text messages asking to settle matters outside of court. The particular text message underlying the eventual criminal extortion charge and conviction stated:  

"Hey amber, this is Ashley the young lady, u hit..i have a little amount of time if i want to pursue, court action…im already on pain management and am going through hard times like everyone..im sure..id rather u help me out we agree to a one time feesable amount. We can even sign something if u want..to keep out of a long court proceeding going back to court over several months, insurance goin up, and my medical bills, since im in and out of hospital already[.] Let me know, if that works for you, or u would rather draw it out in court. Thanks[.]" 

Diedrichs-Giffin did not respond to the message and testified that she perceived it as an attempt to “make a one-time deal with me so that way we didn’t have to pursue it in court.” 

. . . 

¶ 48 Knox contends, the People concede, and we agree that Knox’s threats of litigation to cause “economic hardship” were insufficient to prove her guilty of criminal extortion.  

¶ 49 As pertinent here, a person commits criminal extortion if  

"(a) The person, without legal authority and with the intent to induce another person against that other person’s will to perform an act or to refrain from performing a lawful act, makes a substantial threat to . . . cause economic hardship . . . to . . . the threatened person or another person; and  

(b) The person threatens to cause the results described in paragraph (a) of this subsection (1) by:  

(I) Performing or causing an unlawful act to be performed . . . ." 

[Colorado Revised Statutes] § 18-3-207.  

Thus, as a Colorado federal district court decision explained, proof of extortion requires the prosecution to prove 

"(i) a person, lacking legal authority to do so, ma[de] a threat to . . . cause economic . . . harm to the victim, with the intent of coercing the victim to perform an act or refrain from performing an act, and  

(ii) the person propose[d] to do so by resorting to an unlawful act or by threatening to invoke action by a third party, such as law enforcement." 

Witt v. Snider, Civ. A. No. 16-cv-01303-MSK-CBS, 2017 WL 2215252, at *5 (D. Colo. May 19, 2017).  

However, making a threat to do something while lacking express legal authority is not tantamount to committing an unlawful act. See Whimbush v. People, 869 P.2d 1245, 1249 (Colo. 1994). The defendant must have made a threat to commit an unlawful act. Id.  

¶ 50 Because no Colorado court has addressed this issue, we look to the decisions of other jurisdictions that reached this conclusion. As both parties mention, the overwhelming majority of jurisdictions addressing the unlawful act requirement in the federal analogue conclude that “[a] threat to litigate, by itself, is not necessarily ‘wrongful’ within [this context]. After all, under our system, parties are encouraged to resort to courts for the redress of wrongs and the enforcement of rights.” United States v. Pendergraft, 297 F.3d 1198, 1206 (11th Cir. 2002); see Deck v. Engineered Laminates, 349 F.3d 1253, 1257–58 (10th Cir. 2003); Rendelman v. State, 927 A.2d 468, 481 (Md. Ct. Spec. App. 2007), aff’d, 947 A.2d 546 (Md. 2008); see also Zueger v. Goss, 2014 COA 61, ¶ 42, 343 P.3d 1028, 1038 (Colo. App. 2014) (“Settlement implies a compromise; it does not establish conduct against one’s will.”).  

¶ 51 Accordingly, Knox’s threat to sue Diedrichs-Giffin did not suggest that she intended to act unlawfully; instead, she gave Diedrichs-Giffin the option to settle her alleged claim to avoid litigation. We join other jurisdictions in concluding that the threat of litigation does not constitute criminal extortion. Accordingly, we vacate Knox’s conviction for criminal extortion.

Footnote Regarding The Other Charges And What This Means To The Actual Defendant

Criminal extortion, of which Knox was acquitted on appeal, is a class four felony. Criminal extortion is an offense that is sometimes subject to enhanced sentences related to crimes of violence, but only if the defendant "(A) Used, or possessed and threatened the use of, a deadly weapon; or (B) Caused serious bodily injury or death to any other person except another participant," which are factors that weren't present in this offense, so it was only an ordinary non-violent class 4 felony.

Knox was still found guilty of two counts of false reporting to authorities (which were not appealed), which are class 3 misdemeanors defined at Colorado Revised Statutes § 18-8-111 under the facts in question, and three counts of attempting to influence of public official, which are class 4 felonies defined at Colorado Revised Statutes § 18-8-306, which were appealed but upheld on appeal.

This was based upon the fact that six days after the accident she called 911 and said that she had been hit by the other person's car in an accident that had just happened, and then told two separate police officers at two separate times the same thing, in an effort to get the police to charge the driver with a hit and run offense.

But she confessed that she had lied after being confronted with the email that was the basis of the criminal extortion claim from six days earlier, and the timed transcript of the 911 call of the driver six days earlier, who had called 911 after Knox left to determine if the accident had to be reported to the police to guard against being charged with a hit and run offense.

Knox's attorneys had argued on appeal that police officers didn't count as public officials within the meaning of that particular statute (a not completely implausible argument in the context of how that word was used in deferent parts of criminal code that was nonetheless ultimately rejected by the Court of Appeals), that the false reporting charge and the attempting to influence charge were duplicative offenses involving the same conduct (the Court of Appeals held that they were not duplicative because they involved different kinds of intended outcomes), and that there should be one offense for the entire continuous period of her cover up rather than one for each separate incident of lying to different person, one after the other. These contentions were rejected.

Thus, because of the Court of Appeals ruling affirming that each of these five convictions are separate crimes for which she may be convicted separately, Knox will have not one felony conviction, but three felony convictions (in either case in addition to two misdemeanor convictions which were not appealed), on her criminal record as a result of this extended episode of conduct arising from the same prosecution and incident. 

In Colorado, three felony convictions arising from the same trial, and the same episode of criminal conduct, still only counts as one "strike" for habitual offender statutes as currently written, but this wouldn't necessarily be true in the face of a prosecution for a federal crime, or a prosecution for a crime in another state, or under a Colorado habitual offender statute enacted at some time in the future, where she might face some form of recidivist sentencing enhancement as a three strikes felon.

In Colorado, a class 3 misdemeanor, the least serious misdemeanor classification, is ordinarily punishable by up to six months in jail and/or a $50 fine, plus court costs and restitution, if any. This can be reduced by 50% for good behavior. A class 3 misdemeanor does not carry many collateral consequences related to that conviction, and alternative sentences, such as probation, are quite common for class 3 misdemeanors.

In Colorado, a non-violent, non-sex offense, non-drug class 4 felony is generally punishable by a definite term of imprisonment of two to six years (which may be reduced by up to 50% for good behavior while incarcerated), followed by three years of parole, and/or a fine of $2,000 to $500,000, plus court costs and restitution, if any. A class 4 felony conviction has many collateral consequences in terms of matters such as eligibility for gun ownership, eligibility to enter many licensed occupations (even as a notary public) or the military, makes a non-citizen (even one on a documented visa in good standing) deportable, is ineligible to be punished by a fine without imprisonment for a felony, can give rise to habitual offender sentencing for later convictions, etc. 

Thus, with three felony convictions, she could face $6,000 to $1,500,000 in fines (if the judge chooses to impose them), plus court costs and restitution, if any, or the court could chose to impose no fine and only court costs and restitution, if any.

If she were sentenced to serve the sentences concurrently, she would face two to six years in prison, which could be reduced to one to three years in prison with good behavior, followed by three years of parole. 

But, if she were sentenced to serve the sentences consecutively, she would face six to eighteen years in prison, which could be reduced to three to nine years in prison with good behavior, followed by three years of parole. 

The sentence can't be more severe, however, following the appeal, than it was in the original sentencing hearing following the convictions.

When convictions are based on the same act or series of act arising from the same criminal episode, the sentences imposed must run concurrently, unless there are multiple victims involved, in which case consecutive sentences may be imposed in the discretion of the court, pursuant to Colorado Revised Statutes § 18-1-408(2)-(3). So, the two incidents in which a misdemeanor false reporting and felony four obstruction of justice convictions were obtained for the same statements, must each have concurrent sentences, and all five offenses of conviction must be served concurrently, unless the judge finds that the 911 dispatcher, and the two respective police officers were multiple victims of these crimes and exercised his or her discretion in the original sentencing hearing to impose consecutive sentences. The fact that this wasn't raised as an issue on appeal suggests that this probably didn't happen. The case for there being multiple victims would have been much stronger if the criminal extortion conviction had been upheld, and we don't know if that sentence was to be served consecutively or concurrently.

Thus, the three felony convictions v. one felony conviction part of the appellate decision was really only pertinent to the collateral consequences of the conviction, to any collateral attack on the convictions (since she would have to invalidate all three convictions to reduce her sentence if irregularities were ever alleged with respect to any of them), and to the fine that could be imposed (if a fine was imposed at all in the first place).

So, instead of serving up to three months in jail (if she has good behavior while incarcerated) and possibly up to $100 of fines, in addition to court costs and restitution, if any, Ms. Knox will have to serve one to three years in prison (if she has good behavior while incarcerated), followed by three years of parole, and possibly up to $6,000 to $1,500,000 of fines, plus court costs and restitution, if any, and significant collateral consequences of the conviction. She would probably also be eligible in either case for a probation sentence, in lieu of incarceration or parole, or for a fine, in lieu of incarceration and parole, if the judge deemed fit.

The only issue remaining in the case that would be worthy of considering for a further appeal to the Colorado Supreme Court would be the ruling that the count of attempting to influence a public official was allowed in these circumstances (the decision on whether false reporting and attempting to influence a public official were duplicative couldn't escape all three felony counts because she was convicted of only two false reporting counts, arising from separate incidents, but was convicted of attempting to influence a public official in one count arising from an incident in addition to the two false reporting counts. But, the fact that two separate panels of the Colorado Court of Appeals reached the same conclusion on this issue, albeit with somewhat different reasoning, doesn't make it an attractive issue for the Colorado Supreme Court to consider.

This Week's SCOTUS Rulings

* A cert grant regarding a suit against Google that relied on a subsequently overturned Court of Appeals decision was remanded. Cert was granted on the issue of whether a charitable gift that gave nothing to class members and resulted in an attorneys' fee award was proper in a suit over Google's failure to make statutorily required disclosures. But, the remand was on the issue of whether the class had standing to sue for Google's violation of the statute. The case the lower court relied upon for that proposition was reversed by SCOTUS on the grounds that not all violations of statutes sufficient to give rise to an Article III standing eligible injury. Frank v. Gaos, No. 17-961.

The case reveals, once again, the hostility of the Supreme Court to class action lawsuits. 

* SCOTUS holds that a law firm carrying out only non-judicial foreclosures in Colorado is not a debt collector for purposes of the fair debt collection act except for three narrow provisions related to non-judicial foreclosures. Obduskeyv. McCarthy & Holthus LLP, No. 17-1307.

This is contrary to the working understanding that firms that regularly engage in debt collection are debt collectors even if a substantial part of their work includes non-judicial foreclosures. The analysis is weak in too easily conceding that this law firm that does non-judicial foreclosures is not also more broadly a debt collector without more global analysis of the scope of the law firm's practice, and in its lack of analysis regarding the claim that a non-judicial foreclosure in Colorado which calls for a short court hearing, is truly non-judicial. This ruling comes on the heels of a SCOTUS ruling that a collection agency which buys a third-party's defaulted debt and then collects it on its own is also not within the scope of the Fair Debt Collection Practices Act. There is a parallel Colorado Act with the Colorado General Assembly could amend to address this issue.

* Product liability suits involving ships are subject to admiralty law, rather than state law in product liability lawsuits. At issue is whether the manufacturer is liable for failure to warn of a dangerous product used for its intended use under admiralty law when the dangerous part of the product is intended to be added by the consumer after purchase, rather than included in what is delivered by the manufacturer. In this case, it is asbestos that must be added by the consumer (the U.S. Navy) after delivery. SCOTUS holds that in these circumstances, there is a duty to warn. Air & Liquid Systems Corp. v. DeVries, No. 17-1104.

Since admiralty is a matter of federal common law, the Supreme Court has great discretion in how it resolves these cases (which honestly, don't come up very often).

* SCOTUS holds that an Indian tribe importing gasoline over public highways that cross Washington State via a company the is tribal owned to stores on a reservation is not subject to Washington State fuel taxes based upon the relevant treaty. Justice Gorsuch joined the four liberal justices in making this ruling. Washington State Dept. of Licensing v. Cougar Den, Inc., No. 16-1498.

The core issues appears to have been whether a treaty right to use public highways including a treaty right to transport goods across those highways to a reservation without subjecting the goods to taxation.

* U.S. immigration laws provide that if an immigrant is allegedly deportable due to a criminal conviction and falls into one of four categories, and is picked up directly from jail by immigration officials and placed in immigration custody that the immigrant must be detained indefinitely until a hearing is held. The immigrants in question would have been subject to this rule if they were immediately turned over to immigration officials, but were instead released and then apprehended by immigration officials. The statute that governs immigrants detained by immigration officials who are not turned over directly by jails or prisons to immigration custody entitles them to a pre-trial release hearing. SCOTUS holds that despite the plain language of the statute that the immigrants in question are not eligible for pre-trial release hearings and must be indefinitely detained until a hearing is held on the deportation merits. (A mootness issue related to the fact that some parties received relief or were deported before the case made it to SCOTUS and before a class was certified is dispensed with under the notion of an issue that would defy review for mootness if that rule was strictly applied.) Nielsen v. Preap, No. 16-1363.

This is a big deal, in part, because the speedy trial requirements of the 6th Amendment do not apply to deportation hearings which are chronically very, very behind schedule, which makes any kind of indefinite detention pending a deportation hearing problematic.  Kavanaugh concurs in an opinion noting the narrowness of the decision which does not, for example, address the legality of indefinite pre-trial detention in immigration proceedings in general (which was addressed in three prior SCOTUS cases). Thomas and Gorsuch concur to take the extreme position that immigration detention is not subject to judicial review. The four liberal justices dissent arguing that the distinction between immigrants immediately turned over and those who are detained later is meaningful and intended, because those detained later may have set down ties for years in the U.S. that make the harm of denying a hearing much greater than that of someone going directly from criminal incarceration to immigration detention.

The Little Known Tort Of Harming Others With A False Tax Return

It isn't every day that I discover a new tort after having practiced law for more than twenty years. So, it bears mentioning. I've been aware of the underlying improper tactic for a long time, but didn't know about the statutory remedy for it until now. The basic concern is that you can cause a tax mess for someone if you create a Form 1099 or K-1 which you issue to someone to them saying that they have earned income when they haven't, and there are very few limits on creating a 1099 or K-1 in the first place. 

[Internal Revenue Code] Section 7434(a) provides: “If any person willfully files a fraudulent information return with respect to payments purported to be made to any other person, such other person may bring a civil action for damages against the person so filing such a return.” . . . 

[There is a] surprisingly large amount of case law on this section to address a variety of common issues that arise in these lawsuits. For a good overview of these issues see Stephen's useful blog post here.

From TaxProf Blog.

Mueller v. Swift Part IV

A federal jury on Monday found that a former radio show host groped singer Taylor Swift before a 2013 concert in Denver and awarded her $1 in damages. 

The jury also found that neither Swift’s mother nor her radio promotions manager interfered with David Mueller’s employment contract when they reported the assault.

From the Denver Post.

The outcome is unsurprising and well supported by the evidence. The end effect for Mueller is to leave him even worse off than he would have been had he not brought the suit at all in reputation (massively calling attention to his sexual misconduct) and economically. He will be responsible for Taylor Swift's out of pocket litigation costs (but not attorneys' fees) in addition to $1. The ruling also effectively precludes litigation by Mueller against anyone else.

The ruling in favor of Taylor Swift also makes an appeal exceedingly difficult for Mueller to prevail in since there were no real objections to the process related to the counterclaim and that determination is inconsistent with a ruling in his favor.

It is also worth observing that this trial took six full days (and was scheduled for nine, just in case). If it had been a bench trial, it most likely would have take three days, or, at most four days. The time spent on jury selection, preparing jury instructions, instructing the jury and having the jury deliberate would have been absent, and breaks in the trial would have been shorter.

Mueller v. Swift Part III

Closing arguments were held in the Mueller v. Swift trial this morning before the case was sent to the jury to deliberate.

“He lost his job because he grabbed her butt and he got caught,” said [Taylor Swift's] attorney 

Douglas Baldridge, referring to Taylor Swift’s claim that former KYGO radio host David Mueller groped her before a concert at the Pepsi Center. “Now he’s trying to save his butt.” 

But Gabe McFarland, an attorney for Mueller, told jurors that Taylor Swift falsely accused him of assaulting her and that accusation destroyed his career. 

“Why would Ms. Swift lie? I don’t know,” said McFarland. “I’m sure she thinks it’s true, but the photograph says otherwise.” 

McFarland told eight jurors that Swift’s mother Andrea Swift, and her radio promotions manager, Frank Bell, used their influence to pressure KYGO into firing Mueller. 

McFarland asked the jury to award Mueller $257,500. Baldridge asked the jurors to reject Mueller’s case and award $1 to Swift in her counterclaim.

From The Denver Post (emphasis added).

A $3 million damages request has been deflated to $257,500 in closing arguments.

Furthermore, the emphasized language by Mueller's attorney, while sufficient to defend against an assault and battery claim if the jury believed it, would not be sufficient to support a claim for intentional interference with contract. If Taylor Swift believed she was wrongfully groped and her mother and her manager believed her, there cannot be liability on Mueller's intentional interference with contract claim, which requires wrongful intent. This is a concession that Mueller's attorney should not have made in closing argument that puts any verdict that might be obtained at risk.

Of course, in all likelihood, the jury is not going to believe Mueller's unlikely tale, will dismiss his two remaining claims, and will find in favor of Taylor Swift on her counterclaims, quite possibly before this afternoon ends.

Jury instructions in the case that were used to charge the jury today are here.

Mueller v. Swift Part II

In a previous post, I reviewed the claims at issue in the Mueller v. Swift case in which a trial was being held in U.S. District Court in the District of Colorado this week.

This week, a jury was selected and all of the evidence was presented. Then, a motions hearing to see which claims were supported by enough evidence to go to a jury remained. On Monday, closing arguments will be presented to a jury.

It was a bad day for Mueller's case.

At the start of the trial, the claims were as follows:

(1) intentional interference with contract (related to the firing of Mueller) and (2) tortious interference with business relations (related to his loss of an option in his contract), against Taylor Swift, her manager and her mother. Both of Mueller's claims are against all three of them personally, and also against Taylor Swift without regard to fault on the grounds that she is responsible for any conduct of her manager. Counterclaims for assault and battery brought by Taylor Swift against Mueller are also pending.

The judge didn't even let the jury consider, because there was no evidence to support the claims:

* tortious interference with business relations against all parties.

* intentional interference with contract as to Taylor Swift because (1) contracting her mom and manager was a privileged communication to her own employer of a suspected incident of sexual assault, and (2) because her mom and her manager work for her production company, not for her personally, so she has no vicarious liability and the production company isn't a party to the action.

This leaves for the jury:

* intentional interference with contract against her mom
* intentional interference with contract against her manager
* counterclaims for assault and battery

Moreover, the jury cannot find for Mueller if the jury finds that there was assault and battery.

And, the jury has to find that either mom or the manager believed that Taylor Swift was lying when the manager, with the emphatic support of the mom, contacted KYGO, Mueller's employer about the incident.

There are now fewer logically possible outcomes:

* Intentional interference with contract against mom but not the manager. Mueller gets $$ and costs.
* Intentional interference with contract against the manager but not mom. Mueller gets $$ and costs.
* Intentional interference with contract against the manager and mom. Mueller gets $$ and costs.
* All claims are dismissed. Neither party gets costs.
* Assault and battery against Meuller. Taylor Swift gets $1 plus costs.

Both parties will pay their own attorneys' fees unless the court makes a groundless or vexatious claim determination, which is highly unlikely given that the claims above survived a motion for summary judgment and a Rule 50 motion at the close of evidence.

Given the evidence presented at trial, one of the last two possibilities is most likely, and the last is by far the most likely, so it isn't even really worth trying to do a damages analysis in the very unlikely event that Meuller prevails.

An assault and battery finding would also prevent Meuller from asserting a claim against KYGO or Swift's management company, or anyone else. Fortunately for him, he will, at least, escape a sex offender conviction as a result of this trial, because it is a civil lawsuit and not a criminal one.

What Are The Claims In Mueller v. Swift?

The trial in the big Mueller v. Taylor Swift case is being held right now in the U.S. District Court for the District of Colorado, just down the road from my office. 

While I am vaguely aware that the case involved allegations that Mueller, a Denver DJ groped Taylor Swift, a national popular music star who is one of the most successful cases of an artist transitioning from country music to pop music, I didn't know much else. And, as a lawyer, the news stories that I did glance at, frustratingly did not make clear what was at issue in the case.

The Claims and Counterclaims

Fortunately, original public court records that can clarify the matter are now easily available on the Internet. A May 31, 2017 ruling on a Motion for Summary Judgment in the case by the federal trial court judge presiding over this jury trial was particularly informative.

This is a diversity case pending in federal court. The Plaintiff, David Mueller, brought claims for intentional interference with contract (pertaining to him being fired from a two year contract with KYGO), tortious interference with prospective business relations (pertaining to his loss of potential income from a one year option of the radio station to renew his contract), slander per se, and slander per quod against Taylor Swift, Frank Bell (Taylor Swift's manager who was present at the venue where the incident happened) and Andrea Swift (Taylor Swift's mother who was on tour with her when the incident happened). Taylor Swift brought a counterclaim for the torts of assault and battery.

David Mueller was a country music DJ at Country Music radio station KYGO and the case concerns a backstage meet and greet at Pepsi Center in Denver on June 2, 2013 where Mueller allegedly grabbed Taylor Swift's butt during a photo shoot (partially corroborated by an ambiguous photo), what was said about it afterwards, and what happened as a result. She told her mom, they told her manager, her manager complained and called the DJ's boss the next day and his boss investigated the claims. The day after that DJ was fired for cause (he had a two year employment contract with a one year option to renew on the radio station's part). He sued on May 29, 2015 in state court and the case was removed to federal court by the Defendants who are not Colorado residents.

Mueller's claims for slander per se and slander per quod were added to the case after he filed suit on February 25, 2016 and then dismissed on a motion for summary judgment because they were filed after the one year statute of limitations and not revived by the filing of counterclaims because the slander claims were not counterclaims. (The assault and battery claims also have a one year statute of limitations but were timely due to a revival statute in Colorado law that permits the filing of counterclaims related to the claims in the complaint even if they are otherwise barred by the statute of limitations.) 

The Bottom Line: The Pending Claims

Thus, the claims that have gone to a jury trial in this case (which is set for nine days) are (1) intentional interference with contract (related to the firing of Mueller) and (2) tortious interference with business relations (related to his loss of an option in his contract), against Taylor Swift, her manager and her mother.  Both of Mueller's claims are against all three of them personally, and also against Taylor Swift without regard to fault on the grounds that she is responsible for any conduct of her manager. Counterclaims for assault and battery brought by Taylor Swift against Mueller are also pending. 

The radio station is not being sued for wrongful termination.

Facts Pertinent To Liability

It is rather surprising that this case is set for a nine day trial, although some of that no doubt reflects the fact that jury selection was expected to, and did, take a long time, because not many facts are really at issue.

All of the facts pertinent to liability on the claims and the counterclaims happened over a period of three days, starting on the evening of June 2 and continuing until the late afternoon of June 4. Taylor Swift and her mom's acts allegedly giving rise to liability and Mueller's acts allegedly giving rise to counterclaim liability, all took place on the evening of June 2. Her manager's actions allegedly giving rise to liability allegedly continued from that evening until the following morning when he made a phone call. Mueller's actions in response to the accusations took place later on the following day, but on June 4, it appears that the undisputed facts are Mueller was informed that he was fired and that people were informed of that fact, but nothing else happened relating to the liability of any of the parties.

All of the facts giving rise to liability probably took place over a couple of hours at most.

Other Issues

The Court imposed a sanction on Mueller for spoliation of evidence, but only a mild one, allowing the Defendants to cross-examine Mueller on his doctoring and later destruction of tape recorded evidence of his meeting with his employers on June 3.

Plausible Outcomes

In the end analysis, it turns out that this is actually a very simple case with interrelated claims that reduce the number of possible outcomes.

The eight realistic possibilities in light of the facts and the pending claims on the issue of liability are:

* Mueller wins on both claims against all Defendants. Taylor Swift's counterclaims are dismissed.

* Mueller wins on both claims against Taylor Swift and her manager, but not her mother. Taylor Swift's counterclaims are dismissed.

* Mueller wins on both claims against Taylor Swift, but not her manager or her mother. Taylor Swift's counterclaims are dismissed.

* Mueller wins on only his intentional interference with contract claim against all Defendants. Taylor Swift's counterclaims are dismissed.

* Mueller wins on only his intentional interference with contract claim against Taylor Swift and her manager, but not her mother. Taylor Swift's counterclaims are dismissed.

* Mueller wins on only his intentional interference with contract claim against Taylor Swift, but not her manager or her mother. Taylor Swift's counterclaims are dismissed.

* All of Mueller's claims and all of Taylor Swift's claims are dismissed.

* Mueller's claims are dismissed and Taylor Swift wins on her counterclaims against Mueller.

Damages

Each side may also need to show damages arising from the liability claims. Presumably, Taylor Swift's counterclaim includes few if any economic damage award amounts. Presumably, the core of Mueller's claim would be for almost three years of lost DJ wages possibly reduced by amounts he could have earned in other employment mitigating his damages. The Denver Post, quoted below, says he's seeking $3 million in damages.

There would be pre-judgment and post-judgment interest in both cases at the statutory rate of 8% per annum. Neither claim entitles a prevailing party to attorneys' fees, but a prevailing party would be entitled to out of pocket costs like filing fees and expert witness fees.

Non-economic damages are also limited by statute (if I recall correctly, to $250,000 plus an inflation adjustment, maybe twice that depending on the facts), and it isn't clear to me if non-economic damages are available on Mueller's claims although they are clearly available on Taylor Swift's counterclaim. But, according to the Denver Post, she is only seeking nominal damages, which means that she doesn't need to present any evidence on damages.

Mueller sued Swift and others on her team, claiming they cost him his job and is seeking up to $3 million in damages. Swift countersued, alleging sexual assault, and is asking for a symbolic $1 judgment.

It appears that an exemplary damages award could be made on any of the remaining claims, damages are limited to up to two times the combined economic and non-economic damages awarded in the case (one times that amount in some circumstances, double in other circumstances). 

My Assessment Of The Case

Mueller's odds of winning this case are low. Indeed, after reviewing some news accounts of the evidence offered at trial so far, they are very low.

He has to convince a jury that he didn't grope Taylor Swift contrary to her testimony, that Taylor Swift didn't sincerely believe that he groped her even if he didn't contrary to her testimony, and that Taylor Swift then wrongfully accused him of groping her even though she'd never met him before in her life and knew nothing about him (and didn't even know his name until after the incident) before having a conservation with him for a few minutes and posing for a photograph with him, available as evidence, in which it is appears possible that he could have been groping her. 

Mueller must do so in light of testimony that could suggest that he destroyed evidence that would have been harmful to his case. He must also show in the face of contrary testimony from his former employers that it was more likely than not that his contract would have been renewed.

As to her mother, Mueller has to show that her mother thought Taylor Swift was making a false accusation and went along with urging her manager to take action anyway. As to her manager's personal liability, Mueller likewise has to show that the manager didn't believe Taylor Swift's accusations. A jury is very unlikely to believe either of these allegations.

Taylor Swift has a powerful personality and will testify effectively. She will be a credible witness. Her testimony is corroborated by a photographer and a guard. She immediately mentions it to at least three different people right after the photo shoot.

Mueller will come before the jury as a possibly lech ex-DJ and while glib as a DJ, not a star and not particularly more effective than Taylor Swift's mother or her manager. No one on the scene will be able to testify in a way the convincingly confirms his claims.

Mueller admits having some bodily contact with her in the incident. So, even if a jury believed him would provide a basis for Taylor Swift to believe that he was trying to sexually assault her even if that wasn't his intent. If a jury found that she believed that he intended to assault her, she has no legal liability even if they believe his testimony. They don't have to believe Taylor Swift about what actually happened, they simply have to believe Taylor Swift about what she subjectively believed happened. This is pretty much an impossible hurdle for Mueller's case to overcome.

There is some indications in the pleadings that a third party may have been actually groping Taylor Swift and that Mueller was wrongfully accused, but that Taylor Swift didn't know that fact. But, it appears that this is not the argument that Mueller is making at trial. If the jury believed that this was the case, Mueller's claims would be dismissed, but Taylor Swift's counterclaims would also be dismissed.

The mostly likely outcome is that Taylor Swift cleanly wins and that Mueller cleanly loses.

Yet More SCOTUS Rulings

There were five new merits decisions from the U.S. Supreme Court on Monday which combined with orders entered today, wraps up the year (the October 2016 session) for the court.

* CALPERS v. ANZ Securities. The three year statute of repose for a suit alleging false statements in a registration statement is not tolled for individual claims while a class action lawsuit is pending. The decision is 5-4 involving the usual suspects. The dissent argues that individual claims of people who opt out of a class action are effectively part of the same civil action and hence are not untimely. But, the court takes an anti-class action stance once again.

* Davila v. Davis. A trial lawyer for a defendant convicted and sentenced to death preserved an arguably valid legal objection at trial, but the appellate lawyer for the defendant failed to raise the issue on appeal in conduct that arguably constituted ineffective assistance of counsel. The habeas corpus lawyer then failed to timely raise the issue of the appellate lawyer's ineffective assistance of counsel, which was arguably a second distinct instance of ineffective assistance of counsel. But, SCOTUS holds that ineffective assistance of habeas counsel in failing to point out ineffectively assistance of counsel by appellate counsel, is not sufficient to overcome the usual deadline for complaining about ineffective assistance of counsel by the appellate counsel. If the mistake had been made by trial counsel and habeas counsel, rather than appellate counsel and habeas counsel, review would have been available. The decision is 5-4 involving the usual suspects. Justice Thomas emphasizes the fact that there is no constitutional right to a criminal appeal (which is true, but generally irrelevant when there is a statutory right to a criminal appeal as there is in every state).

* Trinity Lutheran Church of Columbia, Inc. v. Comer. A state constitutional provision barring any public assistance for religious schools is held unconstitutional as applied to a religious school seeking a grant for rubberized surface material upgrades in a playground. The Court distinguishes between being denied benefits because one is a religious institution and being denied benefits because it would use the benefits for religious purposes (which the Court has previously held is permissible). The decision is 7-2 with Thomas and Gorsuch providing one concurring opinion and Breyer concurring in judgment only.  Thomas and Gorsuch would overturn Locke which held that denying funds that could be used for religious purposes is permissible. Breyer focuses on a narrow ruling limited to "a general program designed to secure or to improve the health and safety of children.", that has no religious content. Sotomayor and Ginsburg, in dissent emphasize that the Court is "holding, for the first time, that the Constitution requires the government to provide public funds directly to a church." This is contrary to state constitutions in more than 30 states including Colorado. It isn't clear if the conservatives have the votes to extend this to voucher cases like the one arising in Douglas County, Colorado's schools that would have allowed high school vouchers to be used for private religious schools at the K-12 level whose instruction would be explicitly religious, which were remanded for reconsideration by the Colorado Supreme Court in light of this opinion. A New Mexico case involving closer facts was also remanded to be reconsidered in light of this opinion. This case could portend a major change in establishment clause jurisprudence, or could involve only a narrow exception to existing law with little material impact.

* Hernandez v. Mesa, per curiam. The case is a Bivens action against a border guard is shot and killed a 15 year old Mexican boy on the other side of the border from the U.S. for no justifiable reason. The legal standard to determine if a Bivens action is available was clarified in a recently decided SCOTUS case (which is generally favorable to the government and was decided with a four justice plurality that might not have had the same result if all justices participated) and the high court disagreed with one aspect of the Court of Appeals' analysis of the facts (which is generally favorable to the Mexican boy's estate). The Court remanded to the Court of Appeals to reconsider the case in light of the new law and a differently applied factual issue before SCOTUS addresses the merits of the case, with procedural issues to be decided first in order to avoid the substantive law question if possible. It is quite likely that the Court of Appeals, on remand, will deny the boy's estate a right to bring a Bivens action and that the case may return to the U.S. Supreme Court for further review, either way.

* Trump v. International Refugee Assistance Project, per curiam. The Court grants cert with regard to the Trump administration's Muslim ban on an expedited briefing schedule, sustaining the stay of the ban as to some people affected by it, while terminating the stay as applied to people with "no connection to the United States at all", pending resolution of the case by SCOTUS. This effectively reinstates the ban as to many refugees who had been fully vetted and has visas in place in a manner that will probably render their case moot by the time that the Court can hear it on the merits (since the ban was proposed to be for 90 days). But, since the stay was in place for a significant period of time pending this order, many such people will have already entered the United States at this point.