Five Towns Broker

If your so inclined please pop over to my Five Towns Broker blog. I work as an Associate Broker at Century 21 Madeleine Bodner in Great Neck, NY. If you are looking to broker a five towns home, or lease a five towns apartment - I can help you.

Die Hard Director John McTiernan Facing Jail Time

Following my recent article that ran in the Los Angeles Chronicle on Roger Clemens' legal troubles, a noteworthy Hollywood heavyweight faces similar charges of lying to authorities.

Hollywood director John McTiernan has essentially admitted to lying to the FBI in regards to his involvement with “wiretapper to the stars” Anthony Pellicano.

McTiernan, who is well known for the “Diehard” and “Predator” movies (OK, he also brought us Last Action Hero but nobody's perfect), admitted in Los Angeles federal court to hiring the Hollywood private eye to tap a producer’s phone. The story is as strange as something out of one of his films.

McTiernan entered the plea for two counts of making false statements to authorities and one count of perjury for lying to a federal judge in 2006 while attempting to withdraw his original guilty plea. McTiernan told the court he received poor legal advice and had been drinking when he was questioned by the FBI. Ah yes, the "I was drinking at the time" defense. That ranks right up there with the Lohan "These aren't my pants" and Paris Hilton "I thought it was gum" (referring to a cocaine bag) defenses. I am aware of no jurisdiction where voluntary inebriation constitutes a valid defense for making false statements to federal authorities.

McTiernan was indicted in 2009 on charges of making false statements and perjury and now faces up to a year in prison. He is scheduled for sentencing on Oct. 4.

McTiernan's buddy Pellicano was convicted in 2008 on wiretapping, racketeering and conspiracy charges and is currently serving a 15-year sentence in federal prison aka club fed. Sidenote - Pellicano went with that great time-honored mistake of self-representation serving as his own lawyer - after a lengthy nine day jury deliberation, Pellicano was found guilty on 76 of 77 counts related to racketeering.

Update on the recent Jeonse story

So you may remember that I recently wrote about the great disparity between the South Korean and American rental real estate models. Basically, South Korea's Jeonse system requires a significant down payment of 50-100% of the purchase price to be held by the landlord until the term's completion, upon which it is returned to the renter. Anyway, the story got picked up on Yahoo News' legal section of Associated Content, where it saw a whole lot of hits for a very unlikely topic. I know because I got e-mails from multiple people asking if I do international real estate (not as yet lol). It also ran on the website Litigation Watch. Here is a link to the real estate article.

Rocket to the Slammer - Clemens May See Jail Time if he Goes the Distance

Judge Reggie Walton's courtroom fell silent as Roger Clemens uttered just four words - "Not guilty, Your Honor" - with a smile and his distinctive Texas accent Clemens may in fact be sealing his own fate. There are very few things worse in a legal context than lying under oath. One of them is volunteering to appear before a court even though you are not legally required to do so, then lying under oath. This appears to be exactly what Roger Clemens may have done. It begs the question of why? Yet, before that question is addressed we must consider whether or not Clemens will likely be found guilty - the answer is a definitive yes.

The simple reason for this is that the Feds do not just go out and indict people on a whim or without real cause. They especially do not do so lightly with someone such as Roger Clemens, a public figure with the money and means to fight this thing all the way. Charges of lying to Congress are difficult to prove, which helps to explain why there have been very few prosecutions for the crime in recent decades. And Clemens, with his career record of 354-184, is no pushover opponent. In this case that translates to the probability that the government has real evidence. And I do not mean a lone witness, or an involved witness, such as the person that sold him or helped him use the illicit substances. Rather, the Feds likely have something along the lines of multiple eyewitness statements coupled with perhaps even more damning evidence. Think positive test results previously undisclosed.

So, where does that leave the Rocket? In pretty hot water I would surmise. It does not bode well for Clemens that Court officials selected the large ceremonial courtroom for his trial - they seem to want to make something of an example of him. Yet, Clemens seems pretty certain that McNamee’s (his alleged supplier) horde of artifacts, including the actual needles he allegedly used to inject Clemens with banned substances, will not hold up to forensic scrutiny when presented at trial. McNamee alleges to have kept these items nestled away in a Miller Lite beer can and FedEx box for seven years plus, as you do.

Clemens is not without adequate advocates in his predicament; his lead counsel is Rusty Hardin who has successfully represented many professional athletes before - eg. Warren Moon (assaulting his wife), Wade Boggs (simple assault), and NBA hall-of-famer Calvin Murphy (sexual assault/ indecency with a child). And, not only does Hardin get his clients off the hook - he does it with incredible, almost mythical speed. Murphy was acquitted in just over two hours, Moon in less than a thirty minutes, and Boggs in a vertigo-inducing four minutes. Yet, Hardin is famous also for one of the greatest exchanges in American jurisprudence - EVER! He represented the estate of J. Howard Marshall II, Anna Nicole Smith's 89-year-old deceased husband. Hardin continued to get under Smith’s skin throughout the trial. When she claimed that her husband died from choking on food, Hardin reminded the 26-year-old ex-stripper that her 89-year-old husband died of a heart attack.

Then he asked her “Do you seriously swear under oath that Pierce Marshall ordered people to let his father choke to death? Sobbed Smith: “Yes.” Then Hardin asked “Miss Marshall, have you been taking new acting lessons?” “Screw you, Rusty,” was Smith’s infamous reply. “Shortly after that, I was at a Houston Rockets game, and people in the stands started yelling, ‘Screw you, Rusty,’” Hardin later recalled.

Worthy counsel aside, Clemens may in fact be in real trouble, and even face real jail time. Realistically, he could be looking at something like 10-30 months at Club Fed. So, the lingering question is why did he fib? It seems that he is in fact arrogant and boorish in many respects, and his overflowing hubris may change his pinstripes to prison stripes. One wonders whether Clemens ever even considered giving an apology, as a straightforward mea culpa would likely leave him facing only a hefty fine and perhaps probation. But, the Rocket is simply too proud for that.

When Clemens raised his right hand that fateful day on Capitol Hill, the same arm that made him one of the top pitchers to ever take the mound, he lied. Or so says the Federal Government, and much of the court of public opinion. Now it’s their burden to prove it. And, in an era when a large percentage of players were using something to get an edge, Clemens will have to try to essentially not to be the one guy — maybe even the only one — proven dumb enough to suffer the consequences of their collective folly.

The Lighter Side of Torts - actual courtroom exchanges

The following blurbs are from actual court transcripts - you simply cannot make this stuff up. As serious as the world of personal injury law is, there is comedy to be found as well. Exhibit A is below. So, yes this doesn't relate to real estate law, sue me.

Pedestrian Accidents -


"I saw a slow moving, sad faced old gentleman as he bounced off the roof of my car."

"To avoid hitting the bumper of the car in front I struck a pedestrian."

"I saw her look at me twice. She appeared to be making slow progress when we met on impact."

Multi-Vehicle Accidents -


"I started to slow down but the traffic was more stationary than I thought."

"The car in front of me stopped for a yellow light, so I had no choice but to hit him." (She pushed him through the intesection)

"I collided with a stationary truck coming the other way."

"The accident occurred when I was attempting to bring my car out of a skid by steering it into the other vehicle."


Apportionment of Fault, or the "It wasn't me" Defense -


"No one was to blame for the accident but it would never have happened if the other driver had been alert"

"I left for work this morning at 7am as usual when I collided straight into a bus. The bus was 5 miniutes early."

"An invisible car came out of nowhere, struck my car and vanished."

"I had been shopping for plants all day and was on my way home. As I reached an intersection a hedge sprang up, obscuring my vision and I did not see the other car."


Please repeat that...

Lawyer: "Now, Mrs. Johnson, how was your first marriage terminated?"
Witness: "By death."
Lawyer: "And by whose death was it terminated?"

------------
Lawyer: "What gear were you in at the moment of the impact?"
Witness: "Gucci sweats and Reeboks."

------------
Lawyer: "This myasthenia gravis -- does it affect your memory at all?"
Witness: "Yes."
Lawyer: "And in what ways does it affect your memory?"
Witness: "I forget."
Lawyer: "You forget. Can you give us an example of something that you have forgotten?"

-------------

Lawyer: "What was the first thing your husband said to you when he woke that morning?"
Witness: "He said, 'Where am I, Cathy?'"
Lawyer: "And why did that upset you?"
Witness: "My name is Susan."

--------------

Lawyer: "Trooper, when you stopped the defendant, were your red and blue lights flashing?"
Witness: "Yes."
Lawyer: "Did the defendant say anything when she got out of her car?"
Witness: "Yes, sir."
Lawyer: "What did she say?"
Witness: "'What disco am I at?'"

What's in a Name

So, what is the meaning of the name of this blog. Unless someone is a lawyer there is a very good chance they have no idea what a bonafide purchaser, or BFP is. The title of this blog is a term used in the law of real property and personal property in reference to an innocent party who purchases property absent notice of any competing party's claim to the title of that property. A bonafide purchaser is more thoroughly described as a bona fide purchaser for value without notice. A BFP must purchase for value, meaning that he or she must pay for the property rather than simply be the beneficiary of a gift. Even in circumstances in which a party fraudulently conveys property to a BFP (for example, by selling property to the BFP that has already been conveyed to a third party), that BFP will often, depending on the laws of the relevant jurisdiction, take good title to the property despite the competing claims of the other party, providing the BFP properly records the transaction pursuant to local property law. However, parties with claim to ownership in the property will retain a cause of action (a right to sue) against the party who made the fraudulent conveyance. So, there it goes. We also just liked the ring of it.

A writ by any other name

So, anyone that went to law school can recall being bombarded with a ton of legal terms that are often very old and occasionally even counter intuitive to what one would suppose they mean. To all my learned colleagues out there, I give you this fun little exercise to see what stuck with you and what went in one ear and out the other. The answers are at the bottom of the post. And yes, for clarity's sake a direct translation to latin is not sufficient - you have to know the legal meaning that the words represent. There are 29, I got 22 - good luck. Res Ipsa Loquitur...


AB INITIO it should be said that there is a good prima facie case for the decision of Lord Irvine, the Lord High Chancellor, to simplify the language used in court as part of the civil law reforms which bear the imprimatur of the Master of the Rolls, Lord Woolf. Lord Irvine wants lawyers, pro bono publico, to be much more straightforward in the way they speak pendente lite. Out will go, inter alia, hearings in camera or ex parte. In will come hearings in private or without notice. Plaintiffs will be replaced by claimants. Newspaper editors will no longer live in terror of writs. Instead they will tremble at claim forms. Mr Anton Piller will soon be forgotten except in cobwebbed old tomes. The eponymous legal term will be succeeded, ad infinitum and sine die, by a plain old search order.

News of the proposed changes was announced by electronic fiat on Lord Irvine's website and it is as yet unclear whether more traditional lawyers will view them as a casus belli or as an act of force majeure which defy restitutio in integrum. The lingua franca of the law may be baffling to the lay person but that, surely, was part of its charm and all of its function. Lord Hoffmann's judicial colleagues recently found that he was "a judge in his own cause," a phrase which lacks any undertones of majesty or even mystery. How much more satisfying if they had pronounced that he had offended the basic principle of nemo debet esse judex in propria? Would his noble lordship then have shrugged the matter aside so lightly? Per contra, we think. Matters that are sub judice or lis pendens have a forbidding ring to them which is sadly lacking in "pending litigation". Ultra vires is not without authority as a piece of legalistic verbiage: habeas corpus, translated into English, lacks a certain body.

All this could, in time, have a serious impact on another old legal concept, derived either from the Latin feudum, the Old English feoh, or some say, the Frankish fehu-od. Nowadays most lawyers tend to refer to them simply as "fees". They customarily arrive in the form of a "bill" (from med. Lat, bulla) and elaborately set out the price of, exempli gratia, interlocutory this, mandamus that, half a dozen subpoenas, two dozen affidavits and a fair old quantum of res ipsa loquiturs. The distilled wisdom of centuries goes into the construction of these magnificent documents. Is Lord Irvine really saying that under New Labour lawyers will be required to abandon this age old modus operandi and tell their clients what they've been up to in plain English? It is difficult to imagine a, greater scandalum magnum for rotund felines fom Gray's Inn to the Middle Temple As the traditional Latin saying goes: Caveat feles obesus!

ab initio from the beginning
prima facie at first appearance
imprimatur imprint; lit "let it be printed"
pro bono publico for the public good
pendente lite; lis pendens while judgment is pending; a case in progress
inter alia among other things
in camera in private; lit."in a room"
ex parte prejudiced; lit: from a part/party
ad infinitum for ever
sine die for ever; lit "without day/date"
fiat command; lit "let it be done"
casus belli a ground for war
restitutio in integrum complete restoration, putting back as new
lingua franca international language (lit "Frank tongue" - the Arabs in the middle ages called all Europeans "Franks" - though strictly applying only to the Teutonic tribes who conquered Gaul in 6th century AD. It was a mediterranean mixture of Italian, French, Greek, Arabic mutually understood)
nemo debet esse iudex in propria nobody must be a judge in his own [case]
per contra the opposite sub judice pending; lit "under the judge"
ultra vires in excess of the power possessed; lit "beyond strength"
habeas corpus "you are to produce the body"
exempli gratia for sake of example [e.g.]
mandamus a writ [so called from the first "We command..."]
subpoena a writ commanding a person to appear in court to give evidence; lit. "under penalty" because the person was bound to appear sub poena centum librorum [£100]
affidavit a sworn deposition
quantum amount; lit "how much"
res ipsa loquitur open and shut case; lit "the thing itself speaks"
modus operandi method of working
scandalum magnum a great stumbling-block (original meaning of "scandal")
caveat feles obesus let the fat cat watch out!

From the Guardian February 1999 web directory