Memphis Injury Lawyer Blog

As a Memphis trial lawyer who handles both disputes over money and criminal law cases, I have found it quite interesting and distressing to see the rush to judgment in the press of those persons who have worked for or with Stanford Financial Group (SFG). Lives are and will be ruined for many Tennessee residents by what are, for the time being, only accusations. Having said that, the most innocent ones involved are the investors.

In order for an investor to recover his or her money, a Federal District Judge has appointed a Receiver Ralph Janvey bio. A Receiver's job (Order Appointing) is to gather and value all of the assets of a company which in this case is SFG. Then, subject to the Court's approval, a plan of distribution of assets and payment of trade creditors is worked out. If the Judge approves the plan then payments can begin. Typically, this is neither quick nor easy.

If you or a loved one is in need of recovering the investment, by Court order, you can not take any action to collect it at this time in a Tennessee court. In the Temporary Restraining Order (TRO) the Judge has prohibited any collection activity unless it is first approved through his Court. As a TRO is only valid for a short period of time, (This is supposed to protect those restrained from excessive harm if the TRO was issued based upon inaccuracies.) a hearing will be held on March 2, 2009 for a ruling as to whether or not the TRO will be extended and converted into what is called a Temporary Injunction. This hearing is open to the public and may give us all additional insights into what is on the horizon.

In the meantime, if you are one of the unfortunate investors, begin gathering all of the paperwork that you have concerning your investment. Make out a time line of the events leading up to your investment and a list of those persons(name, address, phone number, etc.) with whom you have dealt, as well. Last, the Receiver has set up a website (http://www.stanfordfinancialreceivership.com/) in order to keep us posted as to the progress of this matter and to pass on information that may assist you. The Receiver has hired a very prestigious and large law firm to handle the necessary legal matters concerning this situation. Respectfully, if you are not represented by a lawyer you will be in the uncomfortable position in trying to get your money back of the guy who brought a knife to a gunfight. To protect your future which is your most valuable asset, seek out an experienced lawyer without delay.

Have you ever had that queasy feeling that you are being watched? Did it ever occur to you that it might be your snack that has its eyes on you? Having dealt with spoiled food cases in Memphis and West Tennessee for many years, this trial layer has never seen anything like this before. In Tennessee law there is a rule called the Closed Container Doctrine.

This protects a distributor of consumables from liability if the product came into their hands sealed and left the same way. For example, A Memphis consumer opens a soft drink that is still capped and finds a mouse inside. Unless the injured person can prove that what was in the sealed container was somehow the fault of the store owner, the plaintiff would not succeed against the store even though a claim might well exist concerning the manufacturer.. What follows is a video of what may be the most disgusting thing that I have ever seen respecting an adulterated food product.

We have all read and heard about the peanut butter recalls. This story makes on wonder if a bug infested product should be recalled or exterminated. Either way, if you find a product that is full of bugs, worms or other vermin, save the product in a sealed container and the receipt for purchase. The call the Shelby County Health Department. In closing, I think I need to go take something for nausea.

There has been no shortage of legal gossip around the Memphis trial lawyer water cooler this week. Federal securities law is only slightly harder to figure out than the Internal Revenue Code if it is written upside down in arabic. The national news has been filled of late with the alleged looting of money from innocent investors who placed their savings with the likes of Bernie Madoff. Tennessee charities, retirement funds and individuals have lost enormous sums to this incredible Ponzi scheme. Now we have an alleged swindle that is far closer to home, Stanford Financial. I have yet to see any proof that this investigation (Yes, folks it is ONLY an investigation at this point.) is a bona fide pyramid fraud.

It is important to remember that no one has been proven to be negligent or reckless or even a little bit less than careful. One can only wonder if this media frenzy will pan out to be just that, i.e. the SEC trying to flex its governmental muscles that were so underused during the Madoff heydays. The 1933 and 1934 securities laws prohibit false or misleading statements or the omission of material facts, either of which induce a person to invest their money. A whole raft of regulations in this area of the law (and others) weave a web of control and oversight of this industry. Tennessee law provides for parallel regulation and enforcement similar to the federal laws. With this in mind one must ask: "How the #@%#$@#$@ (heck) do schemes like the Madoff fraud happen?"

Perhaps Charles Ponzi (actually Carlos) , after whom this scam was named, could tell us. For me, an accusation is merely that. An indictment is only an accusation and the filing of a lawsuit against these individuals and companies is only a "claim for relief". Certainly, not a certainty. Either way, this newsy issue must await judgment in the court of public sentiment unless and until this civil action is tried to a conclusion before a court of competent jurisdiction.

In Memphis, the largest volume of both civil and criminal cases are filed in General Sessions Court. Trial lawyers in Tennessee find that the exact nature of the cases that are handled in this Court, may vary from county to county. In Shelby County, because of the volume, the General Sessions Court has been divided into two different sections both of which are managed by one Clerk of the Court, Mr. Otis Jackson. However, in other areas of Tennessee most of the cases are handled by a unified General Sessions Judge and Court.

Shelby County General Sessions Civil Division handles lawsuits involving less than $25,000.00 in controversy as well as having the exclusive duty to hear actions to change the possession of real estate. These actions are called Forcible Entry and Detainer actions or FED for short. Emergency commitments are also heard here. This court is located in the Shelby County Courthouse at 140 Adams.

The Shelby County General Sessions Criminal Division decides misdemeanors, felony arraignments and preliminary hearings. An arraignment is a hearing to determine, generally speaking, if a person has counsel and to set bond. A preliminary hearing is to determine if a crime has been committed and if the accused, more probably than not, committed the crime. this court is located at the Criminal Justice Center at 201 Poplar.

If this finding is made, then the case moves to Shelby County Criminal Court for final resolution. However, a preliminary hearing can be waived by the accused.This is sometimes done as a part of an insanity defense.All of the hearings in both Divisions of court are heard by a judge who is sitting without a jury. As this is the court that most of us will be touched by at least once in our adult lives, close attention should be given to the judicial candidates at each election.

Memphis Trial lawyers, as well as, Tennessee trial lawyers face both the civil law and criminal law results of violent crime. Not only do the victims of such events seek legal counsel, but if the property where the violent crime happens is a leased apartment, for example, then the owner of this premises may have severe legal consequences too. Usually, liability for injuries of this type boils down to a question of "foreseeability".

For example, on March 7, 2002, at approximately 11:45 a.m., L.C. Miller, a tenant in Jefferson Square,one of several public housing projects owned by the Memphis Housing Authority (“MHA”), argued with the housing project’s security guard, fired shots in the direction of his office, and struck and killed Charles Cornelius Brown, Sr., another tenant at the facility who happened to be in the office area at that time. Brown was not involved in the argument. Miller was subsequently shot by the security guard, who was an employee of Scruggs Security and Patrol, LLC (“Scruggs”), a private company which provided security at the facility at the time of the shooting. A wrongful death lawsuit followed against the MHA and the guard company.

The trial court held that neither the internal policies of MHA nor the contents of the criminal background check of Miller created any duty to the Plaintiffs under these circumstances. Moreover,after observing that a policy excluding those with prior records(from renting) would result in “a massive underclass of ex-convicts homeless due to an inability to find housing,” the trial court rejected the Plaintiffs’ argument that there was an affirmative duty on the part of MHA to conduct a criminal background check on prospective residents.

The Court of Appeals affirmed the dismissal in favor of MHA, holding that “an isolated violent outburst by . . . Miller was [in]sufficient to notify MHA that criminal acts against its tenants were reasonably foreseeable, either generally or at some particular time” and, in consequence, insufficient to give rise to a duty (on the part of MHA) in these circumstances.

The Tennessee Supreme Court granted permission to appeal. They noted, that the landlord and tenant qualify as having a special relationship. Further, violence in a housing project is, generally speaking, foreseeable. Poverty is common in such areas. In consequence, precautions are warranted. The Court found that the record establishes that MHA, aware of this potential danger, took some measures to guard against violence. In 1996, criminal background checks extending over a period of three years, a credit history report, and a home visit were warranted for a variety of reasons, including safety. The question, of course, is whether MHA, with some general knowledge of criminal activity within its housing complexes and a particular knowledge of Miller’s altercation with another tenant four years earlier, could have reasonably foreseen the probability of a violent act. We think so.Giggers v. MHA case opinion.

In order to guard against becoming a victim, the following video will provide some important information:

Violence & Street Crime: Violent Crime Safety

Emotions run so high in disputes over child visitation that violence can erupt during these confrontations. In Tennessee, the time that both the custodial and non-custodial parents are allocated with a child is now referred to as "parenting time". In fact, in Tennessee and Memphis family law matters, the term custody has been replaced by designating one parent as the "primary residential parent". Sadly, as one of our retired and now deceased judges, Hon. Wyeth Chandler, used to comment: " It's often like two dogs fighting over one bone."

There is much that can be done outside of the courtroom to resolve these thorny issues. First and foremost, the parties should try their best to sit down and put their own personal issues aside while concentrating on what is in the child's best interests. If parents were not divorcing and still lived together in one home, hopefully that is what they would do in the first place. Memphis family and divorce lawyers often will sit down with their client's in an attempt to do just this before going to war when a truce would better serve their clients needs. Additionally, mediation has become a cost efficient method to bring the parties together on parenting issues. I have acted as mediator for many years in a number of these disputes. Having the perspective of both a divorce lawyer and a mediator has allowed me to come to a conclusion.

Absent child or sexual abuse, most of these battles are less about the welfare of the kids and more about the parents' competing needs. Secondarily, the only one who wins in these battles is the lawyer. In an attempt to throw water on visitation related fires, the courts now require mediation within 120 days after a case is filed. Also, the parties must either agree on a Permanent Parenting Plan or submit to the Judge, for his or her approval, their own versions of a Plan. While the completion of this long and involved document hs increased the cost of divorce cases, it is intended to forestall future problems by providing for all of the expected future needs of the children.

A part of the Plan is a provision to select a method of dispute resolution respecting the children or other issues. Court is always there and , in my opinion, should be considered as the last option. Ask you lawyer, counselor or minister for a recommendation as to who could best mediate your divorce or visitation case. It may be an answer that will save you and your children from needless strife. It can also save you a fortune in attorney's fees.

Just last week, a West Tennessee family flirted with death by suffocation. This Lake County family, had an improperly vented heater that poured carbon monoxide fumes into their home. Early in my career as a trial lawyer, I handled my first two carbon monoxide death cases. This cause of death is often times connected to either improper venting of a source of this silent killing gas or a heater that inefficiently burns its fuel. Of course, space heaters are not the only potential threats.
Gas water heaters, pool heaters and, for that matter, propane BBQ's can all emit deadly amounts of this odorless, colorless and tasteless gas.

In 2005, two people died from carbon monoxide exposure by running propane buffers, both of which occurred in the workplace. In addition, the Tennessee Department of Health reported that in 2006 there were 11 unintentional deaths due to carbon monoxide poisoning and approximately 150 people who suffered carbon monoxide-related injuries. In 2007, six more people died as a result of carbon monoxide poisoning in Tennessee.

The deaths to which I made reference earlier happened in Paris, Tennessee and at Chucalissa Indian Village (over 30 years ago) which is just south of Memphis. In both cases, the product that was functioning properly became a death machine due to improper venting which resulted in a gas trap which then creates a self-perpetuating problem. In other words, the more CO in a space, the less efficient a heater will be in burning all of its fuel. The by product of this vicious cycle is Carbon Monoxode.This video will help explain why:

Each year the courts in Memphis and all of Tennessee are jammed with persons who seek the advice and aid of trial lawyers. Whether the case goes to trial or not does not lessen the importance of following orders of the Court. While being jailed for contempt of court is not commonplace, it does occur with regularity. For example, a Knoxville woman was recently jailed for her refusal to abide by a Court Order involving parenting time.

As a trial lawyer, it is my ethical duty to always counsel my clients to obey the orders of the Court. Disobedience of these orders is not the way to challenge a ruling that one may find to be improper. From almost any decision, a person can appeal to the next higher court. Many times I have heard judges say that they have made the best decision that they can and that if either party is unhappy, then the displeased person can seek an appeal to the next higher court. However, the story of the woman in Knoxville caused me to consider whether or not Tennesseans really understood all of the consequences of willfully refusing to abide by a judge's decision.

In Tennessee, there are generally two kinds of contempt of court, civil contempt and criminal contempt. The difference between the two can turn on where and how the offensive conduct happened and the type of consequences that are available for the Judge to use. Tennessee Code Annotated, section 29-9-102 defines the breadth of behavior that may be the subject of a perrson being held in contempt:

The power of the several courts to issue attachments, and inflict punishments for
contempts of court, shall not be construed to extend to any except the following cases:

(1) The willful misbehavior of any person in the presence of the court, or so near
thereto as to obstruct the administration of justice.
(2) The willful misbehavior of any of the officers of such courts, in their official transactions.
(3) The willful disobedience or resistance of any officer of the such courts, party,
juror, witness, or any other person, to any lawful writ, process, order, rule, decree,
or command of such courts.
(4) Abuse of, or unlawful interference with, the process or proceedings of the court.
(5) Willfully conversing with jurors in relation to the merits of the cause in the
trial of which they are engaged, or otherwise tampering with them.
(6) Any other act or omission declared a contempt by law.

I think that it fair to say that no one should spit into the wind, or tug on Superman's cape, nor commit any of the above acts. Fortunately, most Judge's in my experience do not want to exercise these powers if they can avoid it. However, it can and does happen. Make sure that it doesn't happen to you, but if this fate should befall you, seek out an attorney who is very familiar with this area of the law as well as the jurisdiction in which the contempt has occurred.