Monday, March 31, 2008
Monday, March 24, 2008
J/24 Easter Regatta Recap
Columbia Sailing Club was the venue for this past weekend's J/24 racing. The 3-day Easter regatta saw 30 J/24s from all up and down the East Coast and Great Lakes. Friday's conditions were extremely light, and the fleet only completed one race.
We awoke to nice breeze Saturday morning, ranging from 8 to 12 knots for most of the day. Due to the light air friday and the possibility thereof on Sunday, the race committee decided to pack in as many races as possible. 5 races, 7 1/2 hours, and 12-14 beers later, we finished the day ready for some BBQ.
The forecast for Sunday proved to be about as accurate as a Miss Cleo reading, and Sunday morning saw a nice 14 knot westerly and two nice races to finish the regatta.
Friday's light air was a good thing, as Thursday night's festivities included a stop at Billy Ray's barn. A local legend at Columbia Sailing Club, Billy Ray brought out the big guns--in the form of his "Slovakian Moonshine." No doubt whipped up in a bathtub behind the barn, this putrid concoction has the nose of corn-flavored diesel fuel and a consistency not unlike fermented battery acid. Friday morning's hangover was painful even by Regatta standards, and had their been more than 1.1 knots of breeze, I would have probably sworn off drinking forever again.
One interesting feature of the event: Chris Fortin shared his Kattack system with the Fleet. Kattack is a GPS driven system that monitors the position of each boat at any given time on the race course. It tracks realtime position, heading and speed, thus enabling each boat to see in great detail when and where the rails fell off the track for each race.
As to our performance: I will only say this.
Not good. Not at all good.
We awoke to nice breeze Saturday morning, ranging from 8 to 12 knots for most of the day. Due to the light air friday and the possibility thereof on Sunday, the race committee decided to pack in as many races as possible. 5 races, 7 1/2 hours, and 12-14 beers later, we finished the day ready for some BBQ.
The forecast for Sunday proved to be about as accurate as a Miss Cleo reading, and Sunday morning saw a nice 14 knot westerly and two nice races to finish the regatta.
Friday's light air was a good thing, as Thursday night's festivities included a stop at Billy Ray's barn. A local legend at Columbia Sailing Club, Billy Ray brought out the big guns--in the form of his "Slovakian Moonshine." No doubt whipped up in a bathtub behind the barn, this putrid concoction has the nose of corn-flavored diesel fuel and a consistency not unlike fermented battery acid. Friday morning's hangover was painful even by Regatta standards, and had their been more than 1.1 knots of breeze, I would have probably sworn off drinking forever again.
One interesting feature of the event: Chris Fortin shared his Kattack system with the Fleet. Kattack is a GPS driven system that monitors the position of each boat at any given time on the race course. It tracks realtime position, heading and speed, thus enabling each boat to see in great detail when and where the rails fell off the track for each race.
As to our performance: I will only say this.
Not good. Not at all good.
Sunday, March 16, 2008
X to C. No, not like the drug.
This weekend was the annual "X to C" regatta at Lake Norman. I can think of several adjectives to describe my mental state during the event, and ecstasy is not one of them.
Racing was cancelled today due to tornadoes. So, fiancee and I went to go look for wedding bands today. So, it literally took an act of god to drag me to the mall.
Show you how smart I am: I make the following comment when asked about the size of the ring she chose:
"Yeah, since I sail a lot, I probably should get it slightly large. You know, so that it's easy to take off."
That didn't go over too well...
Racing was cancelled today due to tornadoes. So, fiancee and I went to go look for wedding bands today. So, it literally took an act of god to drag me to the mall.
Show you how smart I am: I make the following comment when asked about the size of the ring she chose:
"Yeah, since I sail a lot, I probably should get it slightly large. You know, so that it's easy to take off."
That didn't go over too well...
Saturday, March 15, 2008
You're an Idiot
In response to a skipper who requires his crew to sign waivers before boarding his boat:
Obviously, there's no document that you can draw up that will protect you if you're high on angel dust and stab your trimmer in the shin with a marlinspike. A carefully crafted "express assumption of risk" statement won't help you if you're 17 beers deep at the helm of your J/105 and run into a well-lit police vehicle. On land.
That said, the reality of the situation is that, Yes, having your crew or guests sign a properly drafted document could very well limit your liability as an owner, including your liability for negligent conduct, but only in the rarest of circumstances. In the end, I see the limited protective value as such that it is certainly not worth the expense/effort/prick factor to have one drafted & implemented, and I wouldn't advise my clients to have one. And, If one were presented to me by some officious boat owner, I'd probably offer to show him how to self-adminster a colo-rectal examination with a couple of wadded up pieces of paper.
The document in question is called an "Express Assumption of Risk." The doctrine of assumption of risk basically says that when a person knowingly and voluntarily chooses to engage in course of conduct (i.e. sailing) that carries a reasonably forseeable risk of harm, and he or she suffers the type of harm, the agent causing that harm shall not be responsible, even if the agent was in fact negligent. In states that recognize it, it is an "absolute bar" to recovery, meaning that if it applies, the plaintiff can recover nothing. Sounds like a great idea--couldn't hurt, anyways, right?
Most courts generally uphold express assumptions of risk when the Plaintiff's conduct is clearly voluntary and the risks are reasonably forseeable, like engaging in dangerous sports like sailing. So, chances are, if your bowman accidentally beans your trimmer with the spin pole during a gybe, and your trimmer sues either you or your bowman, your trimmer won't be able to recover squat. But, the thing to understand is that the above is likely the case even if he hasn't signed anything. A signed express assumption of risk is excellent evidence that the Plaintiff knew the risks, but it's not a slam dunk.
And, contrary to what almost everyone thinks--it's not without risk. A poorly drafted or overreaching document may be disregarded alltogether by the court. The other risk is practical; if the case goes to trial, it will end up making you look like a giant rectum to a jury that may have otherwise sided with the innocent owner.
The doctrine has been narrowed in recent years. In an effort to avoid precluding claims, courts have defined "inherent risks" very narrowly, leading to some dumb rules: apparently, getting hit by a golf ball is not an "inherent risk" of playing golf. And, "gross negligence," a mushy concept, and willful/wanton conduct are always outside the scope of forseeable risk, meaning that you can recover if the conduct transcends garden variety negligence, even with a signed agreement.
Here's some other news: If you get one, everyone on your boat will hate you, assuming they do not already. Ain't worth it, unless, like my skipper, you couldn't give two shits.
Obviously, there's no document that you can draw up that will protect you if you're high on angel dust and stab your trimmer in the shin with a marlinspike. A carefully crafted "express assumption of risk" statement won't help you if you're 17 beers deep at the helm of your J/105 and run into a well-lit police vehicle. On land.
That said, the reality of the situation is that, Yes, having your crew or guests sign a properly drafted document could very well limit your liability as an owner, including your liability for negligent conduct, but only in the rarest of circumstances. In the end, I see the limited protective value as such that it is certainly not worth the expense/effort/prick factor to have one drafted & implemented, and I wouldn't advise my clients to have one. And, If one were presented to me by some officious boat owner, I'd probably offer to show him how to self-adminster a colo-rectal examination with a couple of wadded up pieces of paper.
The document in question is called an "Express Assumption of Risk." The doctrine of assumption of risk basically says that when a person knowingly and voluntarily chooses to engage in course of conduct (i.e. sailing) that carries a reasonably forseeable risk of harm, and he or she suffers the type of harm, the agent causing that harm shall not be responsible, even if the agent was in fact negligent. In states that recognize it, it is an "absolute bar" to recovery, meaning that if it applies, the plaintiff can recover nothing. Sounds like a great idea--couldn't hurt, anyways, right?
Most courts generally uphold express assumptions of risk when the Plaintiff's conduct is clearly voluntary and the risks are reasonably forseeable, like engaging in dangerous sports like sailing. So, chances are, if your bowman accidentally beans your trimmer with the spin pole during a gybe, and your trimmer sues either you or your bowman, your trimmer won't be able to recover squat. But, the thing to understand is that the above is likely the case even if he hasn't signed anything. A signed express assumption of risk is excellent evidence that the Plaintiff knew the risks, but it's not a slam dunk.
And, contrary to what almost everyone thinks--it's not without risk. A poorly drafted or overreaching document may be disregarded alltogether by the court. The other risk is practical; if the case goes to trial, it will end up making you look like a giant rectum to a jury that may have otherwise sided with the innocent owner.
The doctrine has been narrowed in recent years. In an effort to avoid precluding claims, courts have defined "inherent risks" very narrowly, leading to some dumb rules: apparently, getting hit by a golf ball is not an "inherent risk" of playing golf. And, "gross negligence," a mushy concept, and willful/wanton conduct are always outside the scope of forseeable risk, meaning that you can recover if the conduct transcends garden variety negligence, even with a signed agreement.
Here's some other news: If you get one, everyone on your boat will hate you, assuming they do not already. Ain't worth it, unless, like my skipper, you couldn't give two shits.
Friday, March 14, 2008
Trail Lawyers Endgame
Quoting the below anti-lawyerite:Well, I hope that Mr. Seagate et al will help you out eventually. A young, broke attorney with multiple vessels? You're phuked, my friend........
Hey, here's a case for ya that could pay off-----Will the $1.85 light bulb that I bought last week really last 2,000 hours? I was planning on scewing it in tomorrow night and starting the timer.............
My response:
wow, now those are tough damages to quantify, even in a class action. should the bulb burn out prematurely, you'd have a legitimate breach of express warranty claim. so, we'd prorate the replacement cost according to how long it actually lasted. if it lasts 1,000 hours, then we can sue for $0.93, rounded up to include pain and suffering.
as your attorney, in order to get you any money, i'm going to need you to carefully follow my instructions:
go sit down in the den with your dog gipper, start your timer, and make sure not to leave. in fact, don't divert your eyes from the bulb--if we're going to assess your damages, i must insist that the timing be accurate.
watch the light bulb intently until it burns out. do NOT divert your eyes, even when the retinas begin to crinkle. it's nothing permanent, i promise. then, when you stand up (in the dark), trip and fall down...hard. and make it look convincing. try to make sure that when you trip, your head goes crashing into that glass-framed glossy of dan quayle that you have in your study. the more blood the better!!
then, as you're screaming and bleeding profusely, have your maid rosalita take pictures--lots of pictures. it's okay, we won't call her as a witness, so she can stay.
so, you've heard of mock juries, right? what i need you to do is post the pictures here so i can accurately guage what the real jury's response will be.
my fee will of course be the standard 1/3, or $.031 of actual damages, and $8.3 million pain and suffering.
we're gonna get you a lot a money! (*wink* and *pat on ass*)
Monday, March 10, 2008
LLC Idea
This was my response to an individual who apparently formed an LLC with one asset: his sailboat. Ostensibly, this was to protect himself from liability in case someone were injured aboard his boat. Dumb Idea and waste of time.
"As to forming a Limited Liability Company for the purpose of protecting yourself from demonic trial lawyers, the discussion up to this point has been amusing. Let me clear up a couple of things.
My take: if you have established a Limited Liability entity whose sole asset is your boat; and you've done so purely to limit potential tort liability; and for no other reason other than you're too cheap to pay for insurance, and you have no other actual business purpose 1.) you're an idiot. 2.) whatever professional advised you to do that is an idiot and 3). you're an idiot.
In North Carolina as with all other states, the formal requirements to maintain the existence of a single-member LLC are graciously few. I have my own LLC, and my shareholder meetings generally take place at the bar or on the crapper. I usually flush the minutes, but not always.
While it was in some early statutes, in NC it is no longer required to "hold one's self out," whatever the hell that means, as an LLC to recive the benefit of limited liability. If you've fulfilled the requirements, you're entitled to the protection.
HOWEVER, having an LLC just for liability purposes and self-insuring is a really dumb idea for several reasons:
One: People seem to forget that you're always liable for your own tortious acts. Meaning, just because you've got your LLC doesn't mean you're no longer liable for negligence, even if you're acting solely in the capacity of the LLC. If you personally do something dumb and hurt someone on your boat, even if it's owned by an LLC, your personal assets may be at risk.
Second, if your "business" has no real legitimate business purpose, that is, it is but a "mere instrumentality" of your personal affairs, you may not be entitled to protection. Courts may apply the "piercing the veil" doctrine. Note that this is not for the IRS to decide, as stated below, but for the Courts, so we don't really know the rules yet. It hasn't been done yet in NC because the statute is so new, but Courts in North Carolina are eagerly awaiting a test case on applying the piercing the corporate veil doctrine to the LLC form, and lots of states have pierced the veil of LLCs just as if they were corporations.
Bottom line: if you're self-insuring, and thinking that just by having your boat owned by an LLC will protect you, here's a tip: After the sheriff hauls your trusty carbon-rigged "corporate asset" off to pay for some experimental surgery on your neighbor's aggravated hangnail, do two things. One, think of me, and two, Sue your lawyer, or whatever other idiot told you to do that. They'll be okay. Unlike you, they pay their malpractice premiums.
Here's an idea: keep proper insurance, take reasonable precautions on your boat, train your crew properly, warn your guests about the possible dangers, and stop trying to get something for nothing...
And stop shitting on lawyers all the time...you may need us one day."
"As to forming a Limited Liability Company for the purpose of protecting yourself from demonic trial lawyers, the discussion up to this point has been amusing. Let me clear up a couple of things.
My take: if you have established a Limited Liability entity whose sole asset is your boat; and you've done so purely to limit potential tort liability; and for no other reason other than you're too cheap to pay for insurance, and you have no other actual business purpose 1.) you're an idiot. 2.) whatever professional advised you to do that is an idiot and 3). you're an idiot.
In North Carolina as with all other states, the formal requirements to maintain the existence of a single-member LLC are graciously few. I have my own LLC, and my shareholder meetings generally take place at the bar or on the crapper. I usually flush the minutes, but not always.
While it was in some early statutes, in NC it is no longer required to "hold one's self out," whatever the hell that means, as an LLC to recive the benefit of limited liability. If you've fulfilled the requirements, you're entitled to the protection.
HOWEVER, having an LLC just for liability purposes and self-insuring is a really dumb idea for several reasons:
One: People seem to forget that you're always liable for your own tortious acts. Meaning, just because you've got your LLC doesn't mean you're no longer liable for negligence, even if you're acting solely in the capacity of the LLC. If you personally do something dumb and hurt someone on your boat, even if it's owned by an LLC, your personal assets may be at risk.
Second, if your "business" has no real legitimate business purpose, that is, it is but a "mere instrumentality" of your personal affairs, you may not be entitled to protection. Courts may apply the "piercing the veil" doctrine. Note that this is not for the IRS to decide, as stated below, but for the Courts, so we don't really know the rules yet. It hasn't been done yet in NC because the statute is so new, but Courts in North Carolina are eagerly awaiting a test case on applying the piercing the corporate veil doctrine to the LLC form, and lots of states have pierced the veil of LLCs just as if they were corporations.
Bottom line: if you're self-insuring, and thinking that just by having your boat owned by an LLC will protect you, here's a tip: After the sheriff hauls your trusty carbon-rigged "corporate asset" off to pay for some experimental surgery on your neighbor's aggravated hangnail, do two things. One, think of me, and two, Sue your lawyer, or whatever other idiot told you to do that. They'll be okay. Unlike you, they pay their malpractice premiums.
Here's an idea: keep proper insurance, take reasonable precautions on your boat, train your crew properly, warn your guests about the possible dangers, and stop trying to get something for nothing...
And stop shitting on lawyers all the time...you may need us one day."
Saturday, March 1, 2008
Trail Lawyers, Contd.
Statement of Political Genius:
My response:
Never vote for a lawyer because "all lawyers are against tort reform?"
Wow. That's a pretty sweeping generalization about the 1.1 million lawyers we have in this country. I'll be the attorneys and their minions over there at the RNC and ATRA would take issue with your facts...
The irony is priceless! Here's a guy who was injured and then compensated by the civil justice system, who, if he had his way, would deny others that compensation! Holy crap, you could cut that irony with a knife...
Another one of my favorite ironies: It really makes me grin a bit when people use the phrase "First, let's kill all the lawyers" as an indictment of the profession. What most people don't realize is the fact that Shakespeare actually used this dialogue to praise the legal profession. Yes, that's right.
The line comes from Henry VI. It is spoken by Dick the Butcher, who is, as his name implies, a brutal killer and would-be overthrower of the crown. Basically, the dialogue arises during a discussion between Dick and his brother as to what they will do once they have overthrown the King and assumed power--the first thing they'll do is kill the lawyers. This is classic Shakespearean Irony: The fact that they are evil rogues intent on pillaging the nation, in part by eliminating the learned class and the protectors of the rights of the public, shows that what Shakespeare meant is that lawyers are the protectors of liberty and rational thought, and the last line of defense against tyranny.
Nothing has changed to this day.
Just like the movie "A day without a Mexican," people complain and complain about lawyers, but when we're gone, society crumbles.
"I would never vote for a lawyer because all lawyers are against tort reform."
My response:
Never vote for a lawyer because "all lawyers are against tort reform?"
Wow. That's a pretty sweeping generalization about the 1.1 million lawyers we have in this country. I'll be the attorneys and their minions over there at the RNC and ATRA would take issue with your facts...
The irony is priceless! Here's a guy who was injured and then compensated by the civil justice system, who, if he had his way, would deny others that compensation! Holy crap, you could cut that irony with a knife...
Another one of my favorite ironies: It really makes me grin a bit when people use the phrase "First, let's kill all the lawyers" as an indictment of the profession. What most people don't realize is the fact that Shakespeare actually used this dialogue to praise the legal profession. Yes, that's right.
The line comes from Henry VI. It is spoken by Dick the Butcher, who is, as his name implies, a brutal killer and would-be overthrower of the crown. Basically, the dialogue arises during a discussion between Dick and his brother as to what they will do once they have overthrown the King and assumed power--the first thing they'll do is kill the lawyers. This is classic Shakespearean Irony: The fact that they are evil rogues intent on pillaging the nation, in part by eliminating the learned class and the protectors of the rights of the public, shows that what Shakespeare meant is that lawyers are the protectors of liberty and rational thought, and the last line of defense against tyranny.
Nothing has changed to this day.
Just like the movie "A day without a Mexican," people complain and complain about lawyers, but when we're gone, society crumbles.
Trial Lawyers
http://forums.sailinganarchy.com/index.php?showtopic=62365&hl=
This is in response to a guy who posted something ridiculous about how lawyers are the cause of all human suffering:
My response:
Jeez, let's pile on the trial lawyers again...
Full disclosure, I'm taking up for my own kind, here, but here's my .02:
Just so you can get a check?
Would you rather get nothing?
Would you rather multinational corporations be free to commit malfeasance and screw customers out of billions of dollars just because their wrongdoing hurts a large number of plaintiffs a little bit rather than a small number of people a lot?
Speaking generally, and without knowledge or regard to this specific case, Class Action lawsuits are vehicles to bring corporations or other wrong-doers to account for their actions when those actions cause wide-ranging harms to large numbers of people. If someone or some group illegally causes a small amount of harm to a large number of people, their actions are just as culpable as if they had caused great harm to a few people. Surely you agree with that.
But, I gather that your beef is with the Attorney's Fees.
Assuming that a case has merit, Attorney's Fees in civil cases have to represent the expenses, costs, risks, and other factors present in litigating a hugely complicated and possibly moribund lawsuit such as this in order to make it worth the time for someone to pursue the claim. Otherwise, it will go unlitigated as the individual expense to litigate an individual claim will exceed the potential recovery, exonerating a guilty party.
These fees, IF they are awarded, and that's a big if, will likely be spread among a large handful of attorneys that have poured thousands of hours and hundreds of thousands of dollars into litigating this case.
In nearly every case, the awards given to the plaintiff's attorneys PALE in comparison to the fees of the defense attorneys. And, those defense attorneys get paid even if the lawsuit is not successful-not the case for the Plaintiff's attorneys.
The life of your average Plaintiff's attorney is far from glamourous, and nearly always far from lucrative. Yes, some plaintiff's attorneys make excellent money, and some win the "legal lottery" if that perfect case walks through the door. But, all but the luckiest attorneys will go an entire career without this happening.
No one seems to ever mind that the defense attorney sitting across the table is making $1000 an hour defending this poor corporation that has attempted to get away with endangering lives or fleecing the public out of our money.
The sad reality is that hugely powerful corporate interests in this country have largely succeeded in convincing the public that our tort system is in crisis. They've done so by distorting the facts surrounding a handful of exceptional cases and demonizing trial lawyers by playing to the American worker's emotions--envy being the foremost. The true reality is that corporate malfeasance continues to go largely unpunished, the American people continue to be misled and unknowingly victimized, and corporate interests continue to take precedence over the well-being of the public.
This is a really big issue, and certainly reasonable people can disagree, but I really hate to read things like this that continue to perpetuate the perception that greedy trial lawyers are taking advantage of the system and hurting the justice system and the public. The reality is quite the opposite in my opinion. Every day, Plaintiff's attorneys are the spokespeople for the voiceless, the afflicted, and the powerless. And they do this job in the face of great personal and financial risk, much more so that the perpetually "righteously-indignated" defense bar.
But that's just my opinion...I could be wrong.
This is in response to a guy who posted something ridiculous about how lawyers are the cause of all human suffering:
My response:
Jeez, let's pile on the trial lawyers again...
Full disclosure, I'm taking up for my own kind, here, but here's my .02:
Just so you can get a check?
Would you rather get nothing?
Would you rather multinational corporations be free to commit malfeasance and screw customers out of billions of dollars just because their wrongdoing hurts a large number of plaintiffs a little bit rather than a small number of people a lot?
Speaking generally, and without knowledge or regard to this specific case, Class Action lawsuits are vehicles to bring corporations or other wrong-doers to account for their actions when those actions cause wide-ranging harms to large numbers of people. If someone or some group illegally causes a small amount of harm to a large number of people, their actions are just as culpable as if they had caused great harm to a few people. Surely you agree with that.
But, I gather that your beef is with the Attorney's Fees.
Assuming that a case has merit, Attorney's Fees in civil cases have to represent the expenses, costs, risks, and other factors present in litigating a hugely complicated and possibly moribund lawsuit such as this in order to make it worth the time for someone to pursue the claim. Otherwise, it will go unlitigated as the individual expense to litigate an individual claim will exceed the potential recovery, exonerating a guilty party.
These fees, IF they are awarded, and that's a big if, will likely be spread among a large handful of attorneys that have poured thousands of hours and hundreds of thousands of dollars into litigating this case.
In nearly every case, the awards given to the plaintiff's attorneys PALE in comparison to the fees of the defense attorneys. And, those defense attorneys get paid even if the lawsuit is not successful-not the case for the Plaintiff's attorneys.
The life of your average Plaintiff's attorney is far from glamourous, and nearly always far from lucrative. Yes, some plaintiff's attorneys make excellent money, and some win the "legal lottery" if that perfect case walks through the door. But, all but the luckiest attorneys will go an entire career without this happening.
No one seems to ever mind that the defense attorney sitting across the table is making $1000 an hour defending this poor corporation that has attempted to get away with endangering lives or fleecing the public out of our money.
The sad reality is that hugely powerful corporate interests in this country have largely succeeded in convincing the public that our tort system is in crisis. They've done so by distorting the facts surrounding a handful of exceptional cases and demonizing trial lawyers by playing to the American worker's emotions--envy being the foremost. The true reality is that corporate malfeasance continues to go largely unpunished, the American people continue to be misled and unknowingly victimized, and corporate interests continue to take precedence over the well-being of the public.
This is a really big issue, and certainly reasonable people can disagree, but I really hate to read things like this that continue to perpetuate the perception that greedy trial lawyers are taking advantage of the system and hurting the justice system and the public. The reality is quite the opposite in my opinion. Every day, Plaintiff's attorneys are the spokespeople for the voiceless, the afflicted, and the powerless. And they do this job in the face of great personal and financial risk, much more so that the perpetually "righteously-indignated" defense bar.
But that's just my opinion...I could be wrong.
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