Written by attorneys — see sources below.
An adverb in formal legal writing that denotes connection or association with a matter previously mentioned.
Jordan sent Glen a letter offering partial reimbursement in exchange for a release of malpractice claims. The letter advised Glen he may consult independent counsel regarding the matter. Glen signed the release the next day without obtaining advice. The release is unenforceable because the writing failed to convey the desirability of seeking counsel in connection therewith.
Talia Torres sought to avoid an arbitration clause in her wireless contract with TechVista Solutions. The company moved to compel arbitration under the Federal Arbitration Act. The court examined whether formation defenses applied to the agreement. Torres could not show grounds related to the making of the agreement for arbitration or the failure to comply therewith.
In February 2002, Vincent and Liza Concepcion entered into an agreement for the sale and servicing of cellular telephones with AT&T Mobility LLC. The contract provided for arbitration of all disputes between the parties but required that claims be brought in the parties' individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. The agreement authorized AT&T to make unilateral amendments, which it did to the arbitration provision on several occasions. The parties agree that the December 2006 revisions control. The revised agreement requires customers to complete a one-page Notice of Dispute form. It allows AT&T to offer settlement. It provides that AT&T must pay all costs for nonfrivolous claims. Arbitration must take place in the county where the customer is billed. For claims of $10,000 or less, the customer may choose in-person, telephone, or submission-based proceedings. The agreement preserves the right to bring claims in small claims court. It requires AT&T to pay a $7,500 minimum recovery plus twice the claimant's attorney's fees if the arbitration award exceeds AT&T's last written settlement offer. The Concepcions purchased AT&T service advertised as including free phones but were charged $30.22 in sales tax based on the phones' retail value. In March 2006, the Concepcions filed a complaint against AT&T in the United States District Court for the Southern District of California. Their suit was consolidated with a putative class action alleging that AT&T had engaged in false advertising and fraud by charging sales tax on phones it advertised as free. In March 2008, AT&T moved to compel arbitration under the terms of its contract with the Concepcions. The Concepcions opposed the motion on the ground that the arbitration agreement was unconscionable under California law because it disallowed classwide procedures. The District Court denied AT&T's motion. It described the arbitration agreement favorably in several respects. Nevertheless, the court found the provision unconscionable under the California Supreme Court's Discover Bank decision because AT&T had not shown that bilateral arbitration adequately substituted for the deterrent effects of class actions. The Ninth Circuit affirmed. It also found the provision unconscionable under California law as announced in Discover Bank. The court held that the Discover Bank rule was not preempted by the Federal Arbitration Act because the rule was simply a refinement of the unconscionability analysis applicable to contracts generally in California. The Supreme Court granted certiorari.
View caseTiana Tan sued a publisher after a magazine article portrayed her family in a false light. The article used her name and likeness in connection with a dramatized event. The court considered whether the use fell within statutory exceptions for commercial speech. The publisher argued the portrayal was protected because the likeness had been sold or disposed of with such name used in connection therewith.
In September 1952, James Hill, his wife, and their five children were held hostage for 19 hours in their home in Whitemarsh, Pennsylvania, by three escaped convicts. The convicts treated the family courteously and released them unharmed. Shortly after the incident, the family moved to Connecticut, and Hill discouraged further publicity. In 1953, Joseph Hayes published the novel The Desperate Hours, which was inspired by the Hill incident but depicted a family suffering violence at the hands of the convicts. The novel was adapted into a Broadway play that opened in 1955. Life magazine published an article in its February 28, 1955, issue titled "True Crime Inspires Tense Play," which described the play as a reenactment of the Hill family's experience and included photographs of actors posing in the former Hill home. The Life article was prepared by entertainment editor Prideaux, who relied on information from Hayes and a photographer but did not verify the extent of fictionalization. James Hill sued Time, Inc., the publisher of Life, in New York state court under sections 50 and 51 of the New York Civil Rights Law. He alleged that the article falsely portrayed the play as a reenactment of his family's experience. At the first trial, a jury awarded Hill $30,000 in compensatory damages and $20,000 in punitive damages. The Appellate Division affirmed the liability finding but ordered a new trial on damages, and the New York Court of Appeals later sustained the compensatory award while reversing the punitive damages. After a second trial limited to compensatory damages, the jury again awarded $30,000. The New York Court of Appeals affirmed the judgment. The United States Supreme Court granted certiorari to review the constitutional issues raised by the application of the state statute.
View caseThreshold Capital owned a historic terminal designated as a landmark. The company sought to build an addition that would alter protected features. The commission denied a certificate of appropriateness because the proposal would not be in harmony therewith. The denial prompted a takings challenge under the Fifth Amendment.
In 1965 New York City enacted the Landmarks Preservation Law, which created an eleven-member Landmarks Preservation Commission and authorized it to designate buildings at least thirty years old that possess special historical or aesthetic interest. The law required owners of designated landmarks to obtain Commission approval before altering exterior architectural features and imposed an affirmative duty to keep those features in good repair. In August 1967 the Commission designated Grand Central Terminal a landmark and the city tax block it occupies a landmark site; the Board of Estimate confirmed the designation the following month. Penn Central Transportation Co. and its affiliates owned the Terminal, an eight-story Beaux-Arts structure completed in 1913 that served as the main station for the New York Central and Harlem lines. On January 22, 1968, Penn Central entered a fifty-year renewable lease with UGP Properties, Inc., under which UGP agreed to construct a multistory office building cantilevered above the Terminal and to pay Penn Central at least three million dollars annually after construction. Penn Central and UGP submitted two plans prepared by architect Marcel Breuer: Breuer I, a fifty-five-story tower resting on the Terminal roof, and Breuer II Revised, a fifty-three-story building that would have removed part of the 42d Street facade. After four days of hearings at which over 80 witnesses testified, the Commission denied this application as to both proposals. Penn Central filed suit in New York Supreme Court, Trial Term, seeking a declaratory judgment, injunctive relief, and damages for a temporary taking. The trial court granted the injunctive and declaratory relief. The Appellate Division reversed, holding that Penn Central had failed to prove deprivation of all reasonable beneficial use. The New York Court of Appeals affirmed, concluding that the Terminal could still earn a reasonable return and that transferable development rights provided significant compensation. The Supreme Court noted probable jurisdiction.
View caseTanya Tang's family sought to discontinue artificial nutrition for her after a car accident left her in a persistent vegetative state. Missouri required clear and convincing evidence of her wishes before withdrawal. The court reviewed whether the state could interfere with her liberty interest in refusing treatment. The evidence of her prior statements was examined in connection therewith.
On the night of January 11, 1983, Nancy Beth Cruzan lost control of her car as she traveled down Elm Road in Jasper County, Missouri. The vehicle overturned, and Cruzan was discovered lying face down in a ditch without detectable respiratory or cardiac function. Paramedics were able to restore her breathing and heartbeat at the accident site, and she was transported to a hospital in an unconscious state. An attending neurosurgeon diagnosed her as having sustained probable cerebral contusions compounded by significant anoxia. The Missouri trial court found that permanent brain damage generally results after six minutes in an anoxic state, and it was estimated that Cruzan was deprived of oxygen from twelve to fourteen minutes. She remained in a coma for approximately three weeks and then progressed to an unconscious state in which she was able to orally ingest some nutrition. Surgeons implanted a gastrostomy feeding and hydration tube in Cruzan with the consent of her then husband. Subsequent rehabilitative efforts proved unavailing. She now lies in a Missouri state hospital in what is commonly referred to as a persistent vegetative state in which a person exhibits motor reflexes but evinces no indications of significant cognitive function. The State of Missouri is bearing the cost of her care. After it had become apparent that Nancy Cruzan had virtually no chance of regaining her mental faculties, her parents Lester and Joyce Cruzan, who serve as coguardians, asked hospital employees to terminate the artificial nutrition and hydration procedures. All agree that such a removal would cause her death. The employees refused to honor the request without court approval. The parents then sought and received authorization from the state trial court for termination. The trial court found that a person in Nancy's condition had a fundamental right under the State and Federal Constitutions to refuse or direct the withdrawal of death prolonging procedures. The court also found that Nancy's expressed thoughts at age twenty-five in conversation with a housemate friend suggested that given her present condition she would not wish to continue on with her nutrition and hydration. The Supreme Court of Missouri reversed by a divided vote. The court recognized a right to refuse treatment embodied in the common-law doctrine of informed consent but expressed skepticism about the application of that doctrine in the circumstances of this case. The court found that Cruzan's statements to her roommate regarding her desire to live or die under those conditions were unreliable for determining her intent and thus insufficient to support the coguardians' claim to exercise substituted judgment on Nancy's behalf. It rejected the argument that Cruzan's parents were entitled to order the termination of her medical treatment, concluding that no person can assume that choice for an incompetent in the absence of the formalities required under Missouri's Living Will statutes or the clear and convincing inherently reliable evidence absent here. The Supreme Court granted certiorari to consider the question whether Cruzan has a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment from her under these circumstances.
View caseTravis Tate was convicted by a jury that included a juror who expressed racial animus during deliberations. The defense sought to introduce an affidavit describing the statements. The trial court applied Colorado Rule of Evidence 606(b) to bar inquiry into matters occurring during deliberations. The Supreme Court held that the Sixth Amendment requires an exception when statements show racial bias in connection therewith.
In 2007, two teenage sisters were sexually assaulted in the bathroom of a Colorado horse-racing facility. The girls identified the assailant as a racetrack employee, and police arrested Miguel Angel Peña-Rodriguez. Each girl separately identified him as the man who assaulted her. State prosecutors charged Peña-Rodriguez with harassment, unlawful sexual contact, and attempted sexual assault on a child. Before the jury was empaneled, members of the venire received a written questionnaire asking if anything would make it difficult to be a fair juror. The court and defense counsel repeatedly asked prospective jurors whether they could be fair and impartial. None of the empaneled jurors expressed reservations based on racial bias. After a three-day trial, the jury convicted Peña-Rodriguez of unlawful sexual contact and harassment but failed to reach a verdict on the attempted sexual assault charge. When the jury was discharged, the court gave the mandated instruction that whether jurors discussed the case was their own decision. Following discharge, two jurors remained in the jury room to speak privately with defense counsel. They reported that during deliberations another juror, identified as H.C., had expressed anti-Hispanic bias toward Peña-Rodriguez and his alibi witness. With the trial court's supervision, counsel obtained sworn affidavits from the two jurors. The affidavits stated that H.C. said Mexican men had a bravado that caused them to believe they could do whatever they wanted with women. The affidavits further stated that nine times out of ten Mexican men were guilty of being aggressive toward women and young girls. H.C. believed Peña-Rodriguez was guilty because he is Mexican and Mexican men take whatever they want. H.C. did not find the alibi witness credible because the witness was an illegal. The trial court acknowledged H.C.'s apparent bias. It denied Peña-Rodriguez's motion for a new trial on the ground that Colorado Rule of Evidence 606(b) generally prohibits a juror from testifying about statements made during deliberations in a proceeding inquiring into the validity of the verdict. A divided panel of the Colorado Court of Appeals affirmed, agreeing that the statements did not fall within an exception to the rule. The Colorado Supreme Court affirmed by a 4-3 vote. The United States Supreme Court granted certiorari to decide whether there is a constitutional exception to the no-impeachment rule for instances of racial bias.
View caseThe phrase requires the lawyer to affirmatively advise an unrepresented client of the desirability of seeking independent counsel and to provide a reasonable opportunity to do so. A neutral statement that the client may consult counsel is insufficient. The writing must convey the wisdom of obtaining separate advice before the client signs a release.
The rule applies to both unrepresented clients and former clients when settling malpractice claims. It protects parties who lack independent representation at the time of the settlement discussion. The requirement of written advice and opportunity for counsel is the same regardless of current or former status.
The release remains unenforceable if the lawyer failed to provide adequate written advice or a reasonable opportunity to seek counsel. The client's decision to sign promptly does not cure the lawyer's noncompliance with the rule. Courts focus on whether the required safeguards were in place before the client acted.