What if you went to a doctor for a migraine and ended up with gangrene so bad in your arm that it had to be amputated? That’s what happened to Diana Levine, a Vermont guitarist with headaches. Injected with the Wyeth drug Phenergan by means of one intravenous method that was “discouraged but not forbidden” by the FDA (Food and Drug Administration), the drug went into an artery instead of a vein.

The result was gangrene and the loss of her right forearm, which has ended the guitarist’s career. On Monday, the Supreme Court “appeared torn over whether a federal law on drug labeling should pre-empt a jury’s $7 million verdict against Wyeth…,” reported The National Law Journal. “The case, Wyeth v. Levine, has been billed as a major milestone in the effort by the pharmaceutical and other industries to free themselves of unpredictable state court tort litigation by embracing instead a single federal regulatory regime — in short, federal pre-emption.”

Solicitor General Seth Waxman told justices that the FDA took into account the possibility of gangrene? Wait, what? They went on to say that after balancing it with the benefits of the drug, they let it pass their inspection.

Justice Samuel Alito Jr. responded, “How could the FDA conclude that IV-push was safe and effective when the benefit was relief of nausea while the risk was gangrene?”

“No matter what benefit there was, ” added Justice Ruth Bader Ginsburg, “how could the benefit outweigh that substantial risk?”

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The National Law Journal’s Erwin Chemerinsky wrote about Dennis Jacobs, the chief judge of the 2nd Circuit, who is very vocal about his poor opinions of pro bono work. In Chemerinksy’s eyes, Jacobs is disgraceful. Pro bono work is a way to help the community. However, Jacobs refers to it as an “antisocial” and self-serving activity that law firms use to recruit and “give solace” to associates.

According to Chemerinsky, a law professor, he pushes his students to do pro bono work, which helps people who cannot afford legal services. Without the work of lawyers giving to those in need, so many people would fall victim to the law itself. Money is power and without the green, anything can happen. Pro bono work, in my opinion, is highly admirable. It is definitely needed and I, too, feel that calling it “antisocial” is dead wrong. Giving is getting and I commend all lawyers who have given back, especially in today’s economy.

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One of the trickier agreements that companies must deal with is the non-compete agreement, simply because the document needs to strike the right balance between protection and freedom. The non-compete agreement is a written understanding in which one party, usually a departing employee or partner, agrees not to compete in the same field or profession as the second party, usually a company or partnership, for a specified length of time and within a certain geographic area. Typically, a company will conclude a non-compete agreement between itself and one of its employees. This may occur upon hiring the employee (and the “agreement” may in fact be a clause in the employment contract); or it may occur at the employee’s termination with the company, either in a formal agreement or, again, as a clause in a separation contract.

Consideration plays an important but overlooked role in non-compete agreements. The employee, it must be remembered, is agreeing not to compete with his former employer in the field in which he ostensibly has certain valuable knowledge. For the employee to give up this right, even briefly, the company must offer something of worth in exchange. The promise of a job may suffice (for the new hire), as may continued employment or the prospect of a raise (for the existing employee).

Meanwhile, the company must also be protected. The point of the non-compete agreement is to safeguard a company’s sensitive business information or trade secrets. Courts have determined that a certain level of protection, albeit at the expense of terminated employees, is merited. The key is reasonableness. Companies may protect their legitimate business interests. Thus, a non-compete that is overbroad-denying the employee the right to work anywhere in the state or the country, or for a period of time going into the years-likely will be struck down. At the same time, it should not be forgotten that some companies have secrets that warrant very broad non-compete agreements.

Many states courts-and the law differs in this area of the law from state to state-will strike down overbroad non-compete agreements in their entirety. Others will “blue line” them-eliminating only the invalid parts. California leads the way in banning non-compete agreements altogether, except in the case of the sale of a business. In this instance, the new business owner should not be denied the company’s existing goodwill.

Another aspect to consider is how the employee left the company. If he was let go through no fault or design of his own, then a court may be less likely to enforce a non-compete agreement, especially a highly restrictive one. Conversely, if he quit or was terminated for cause, then the balance tips in favor of the company.

Sometimes, companies understand that the agreement they place before one of its employees is not likely to be enforced. For these organizations, it is enough to have the employee intimidated and wary about ever crossing the company.

All in all, the non-compete agreement is a valuable tool for companies. But for it to be most useful, its drafters must find that proper equilibrium between the company’s legitimate interests and the employee’s right to work.

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Chucking the old phrase, “just tell em’ what they want to hear” right out the window is famed Wyoming trial lawyer Gerry Spence. Having begun his own blog, Spence is brutally honest with his readers, questioning the law, speaking out about the unfairness of the legal system and referring to law school and the bar exam as a “fraud.” According to Spence, it costs $100,000 to get through law school but a “law school graduate doesn’t know enough to pass the Multi-state Bar and has to spend another $5,000 or more to prepare for that.”

And what makes the exam a fraud?

Spence writes: “The exam does not help the law profession to determine those who will fight for people, who are honest and who have courage-the most fundamental requirements of a lawyer for the people. The bar exam only tests the applicants ability to play their mostly silly word games.”

Spence goes on to say that he’d prefer a nurse than most lawyers fresh out of law school to assist him in trial. “Lawyers know little about listening,” said Spence. “The nurse chose her profession because she cares about people. Lawyers are not taught to care.

“They are engorged with the rare niceties of legal gymnastics often taught by ponderous-headed professors who have never looked into the painful eyes of a client and who have never tried a single jury trial for a human being.”

Spence writes that in law school, professors remind their students that they don’t teach justice, they teach the law. Being able to teach an eighth-grader in twenty minutes how to brief a case, explained Spence, a law student’s education doesn’t prepare him to actually walk the walk in the courtroom.

“The matriculating young lawyer is as qualified to represent a client with the education he has suffered through as a doctor who has never seen a patient, who has never held a scalpel in his hand and who learns surgery by having read text books about it and becomes skilled in surgery, if ever, after having stacked up piles of corpses who represent his pathetic learning process.”

Spence continues by emphasizing the importance of art and literature and how it strengthens the lawyer within. Self-expression, communicating through poetry and painting are a few examples of how he suggests learning to better connect with clients and jurors. Unlike what lawyers are taught, which is to “shield” themselves against their feelings, Spence thinks that they start to find it almost impossible to get in touch with them. And without that, it is also impossible to connect with jurors who “make their decisions based on their feelings.”

“Little wonder that lawyers,” said Spence, “disabled by all of the stifling, mostly useless mental exercises they have suffered, have trouble relating to jurors much less to the rest of mankind.”

Popularity: 8% [?]

It’s the newest thing…lawyers are turning to social networking sites for incriminating evidence against their “opponent” and it is working. Although sites such as Facebook and MySpace seem innocent enough, if you have a head on collision with the law and are due in court, stay clear of them. What seems like fun and games will be used against you in a court of law.

Case in point: Joshua Lipton was charged in a drunken driving crash that injured a 20-year-old college junior. Two weeks after the incident, photos of him in a “Jail Bird” costume for Halloween, holding a beer, were pasted on his Facebook page and later used as a slideshow to prove that Lipton didn’t deserve anything less than a prison sentence. Ouch!

One of the many images of Lipton in his jail costume had him standing beside a young woman in a sorority T-Shirt. Above it, prosecutor Jay Sullivan wrote: “Remorseful?”

Like I said…ouch!

Superior Court Judge Daniel Procaccini responded, “I did feel that gave me some indication of how that young man was feeling a short time after a near-fatal accident that he thought it was appropriate to joke and mock about the possibility of going to prison.”

Therefore, the judge made the pictures become a reality and sentenced Lipton to two years in the big house.

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An attorney and his bud went out to pick up a pizza but returned as wanted men by law enforcement. What did they do? Well, nothing. What did a Papa John’s employee say they did? He inferred armed robbery. Or, so says attorney Sanford Kelsey and his friend Thomas Williams.

It began on February 2005 when Kelsey, who holds an LL.M. degree from Georgetown University Law Center, visited Williams in Indianapolis. One quiet night, the two guys decided to go out for Papa John’s, having no idea what was in store for them.

When they arrived home for some fun with family and friends, rather than sitting down for a good game of cards and some pizza, the two men found an unmarked police car waiting for them. As soon as the cops saw the lawyer and his pal, they must have called for backup. No, seriously. Several more police cars swarmed their vehicle, and ordered the guys out of their car at gunpoint - (obviously, these particular officers saw one two many episodes of Cops).

Kneeling down, Kelsey and Williams were handcuffed, hauled off to jail and detained for roughly 90 minutes as friends watched.

Reportedly, a Papa John’s employee, Kelly Tharp, falsely claimed that the two men busted into the pizza joint with a visible gun, and took money from the register. Ouch!

Kelsey and Williams are filing a suit against the food chain, however, a lower court initially granted summary judgment to Papa John’s and Tharp, the employee who made the accusations. Finding that the allegation against Tharp was insufficient to support a claim of defamation, which was the foundation of the plaintiff’s other claims, Kelsey’s lawyer, Arend J. Abel, a partner with Cohen & Malad appealed the decision, successfully.

The appeals court discovered that Tharp was previously terminated for theft at another Papa John’s but was rehired under a false name and then rehired again by yet another franchise after using his father’s name.

Furthermore, while Tharp’s exact words were that Kelsey and friend “pulled a gun,” and the lower court bought this as not being an act of defamation, on July 11, 2008, a three-judge panel overturned the decision and Kelsey can now move ahead to trial with his claims of false imprisonment, defamation, negligence and intentional infliction of emotional distress against the pizza chain.

And that’s what happens when you mess with a lawyer! You are going to trial…

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Saw this great post over on Smallbiztrends concerning some of the problems that come up with writing contracts.

Have you ever contacted your attorney to prepare what you think will be a simple contract, only to get snared in a situation that feels like an episode of the Twilight Zone?

You know what I’m talking about. You’re imagining it as a simple 2-page contract, only to have it turn into the 17-page, 9-point font “contract from hell.”

I have seen a lot of examples of this kind of contract, some are even archived on RealDealDocs. One example would be the Halliburton KBR Seperation Agreement we posted a while back.

And thinking back, I now realize there were times as an attorney when I prepared contracts that could have been more user friendly. The process could have been a lot more efficient. That’s especially true early in my career, before I knew better. Of course, I learn best from making mistakes.

I am glad he sees the errors of his way. It’s not a requirement that laws be unreadable, in fact it should be the other way. While contracts are written by lawyers, it’s also important that the people signing them have a good understanding of what they mean and what they’re getting into. In some places if this isn’t the case, the contract could even be void, since the people are not obligated to conform to a contract which includes unreasonable expectations.

You can read the full article about efficient contract writing here: Part One, Part Two

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