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RR47: When faced with real experiences...

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Any feeling I have has been had by someone else before. Ok. I can deal with that part. But, if the experience has been had by another, still another has cataloged this experience and figured out how to exploit it.

So, I walk down the street and see a dingily dressed woman walking home from work. Maybe she was a cleaning lady. Or worked in a factory. She wasn’t homeless. She didn’t walk like a homeless person. She wasn’t dirty like a homeless person. She didn’t try to obstruct people so they had to deal with her. She was just a woman in a dirty sweatshirt walking home from work. So, I had an interesting feeling when I saw her: I realized how I would end a story where a bunch of different versions of a narrator would come home at night and talk to each other in the kitchen. Seeing this woman gave me the purpose of the story.

Amazingly, this feeling isn’t new. Someone has had this feeling before. And, someone else has witnessed this other person having this feeling. The other person, along with a marketing research group, figured out how to recreate this feeling in movie form. No, not movie form, in commercial form. And, they figured out its usefulness: this is the perfect feeling to elicit from someone when we want them to feel adventurous. So, soon, very soon, there will be a commercial where the feeling of completing-a-story-by-a-happenstance-observation is used to market new corn-flavored ice cream. Mmmm, I feel adventurous because I feel complete. I think I’ll try it.

RR 46: Owl Languages

She told me that we live in a time of abundance. That in WWII, they made due without chocolate cake. “Today, there is no chocolate cake. Who knows what tomorrow may bring?” I wonder if abundance is a sign of societal growth. Or, perhaps it is simply a redress to the problem of a lack of abundance.

I watch the television tell me the entire state is on fire. Without changes in temperature, or even clouds, the weather woman is forced to make wind currents look interesting. With charts and graphs that pan left and right, that zoom in and zoom out, she tells us that smoke from 800 statewide fires will spread East on the gulf stream. Only, she uses a lot more words because a mime behind the camera was making a large smile with taffy as stage instruction.

She told me about a psychologist who believed in vibrations. With vibration, so it went, we could tap deep into the body to purge out the physical harboring of mental stress. This meant that orgasm was best for releasing mental blocks because the body itself vibrated. Here begins a whole new breed of pickup line that is both vulnerable and explicit.

I don’t go to yoga. But I try to get there. Instead, yoga blooms without me in a room muted by chalk dust as I wait for the train behind the train I was on to arrive. I listen to Iggy Pop’s Passenger on my Ipod without realizing the irony until I sit down to write a snippet about it.

Billy Collins is waiting for everything to be compared to everything else so that we can all close our notebooks, fold our hands, and simply watch the sunset. But, we haven’t even discovered all of the insects in the rainforests, let alone compared them to a summer breeze or a basket of puppies.

I’m looking at the feet of a pigeon covered with a brown sauce, served with small medallion onions. My friend says, “Mmmm, truffles.” I wonder if there is truffle in the sauce, or if the onions are referred to as truffles. I only know “truffle” in two senses: as an expensive mushroom, or as a chocolate. I accept this limitation in my knowledge. Heck, it took me two days to get around to looking up “ersatz” even though my lack of understanding tanked a chapter in a book I’m reading. The pigeon breast makes me think of the term “sky rat.”

New Jersey Civil Procedure

The New Jersey State Court Structure

• The Supreme Court's appeals as of right include the following issues: substantial issues of New Jersey constitutional law, dissent in the appellate division.
• Each Superior court (the trial court level) has the constitutional authority to exercise powers the powers of other Superior court divisions (civil, criminal, general equity, family, probate).

Subject Matter Jurisdiction

• The trial courts have general jurisdiction
• Unanimous juries are not needed. A 5/6 split is enough to render a verdict.
• For claims based on federal law, the adjudicating state court will apply federal substantive law and state procedural law. Think of this as the "reverse Eerie Doctrine."

Personal Jurisdiction

• There is no codified long arm statute. Apply a minimum contacts analysis: The party has minimum contacts with the state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. "Minimum contacts" requires purposeful availment or injecting goods into the stream of commerce with the expectation that it would be purchased in the forum state with some type of "reaching out to the state."
  
• Personal service is valid unless presence in the state is through fraud or force.
• Forum non conveniens requires a demonstration by the out-of-state plaintiff that a trial in New Jersey would be oppressive to the defendant or otherwise manifestly inappropriate.
• In Rem jurisdiction is only applicable to action relating to property located in the state.

Venue

• For real property actions, venue is appropriate at the situs of the property.
• Basic venue is appropriate where any party resides, where the cause-of-action arose, or where summons was served on a non-resident defendant.
• Corporations reside in the county where they are registered or where they are doing business.
• Transfer if actions is available for the convenience of the parties. Improper venue is any place where there is substantial doubt about receiving a fair trial.
• A party may object to a transfer of venue up to 10 days after time for service of last responsive pleading.

Commencement of an Action

• An action begins with the filing of a complaint and the assignation of a track number. The case track number is sent to the plaintiff within 10 days of filing. Any summons must be issued within 15 days from the track assignment notice.
• Service of process can be done by an adult not having a direct interest in the litigation. This includes the plaintiff's attorney or agent.
• Service of process follows the general rules of service of process in other states, so I won't regurgitate it here.
• For service of process to defendants in other states, so long service would be valid under New Jersey rules, it is valid service in that other state.

...

NY distinctions in Real Property

• The fee tail is abolished in New York, as it is in just about all states. A fee tail is "to A and the heirs of his body." In other words, the estate passes to lineal blood descendants.
• In New York, a fee simple determinable ("To A so long as ...") is called a fee on limitation.
• In New York, a fee simple subject to condition subsequent ("To A, but if X event occurs, grantor reserves the right to reenter and retake.") is called a fee on condition. This is less harsh than the reverter in the fee simple determinable.
  
• Under federal rules, ameliorative waste is not permitted unless all future interest holders are known and consent. However, in New York, a life tenant may make reasonable improvements unless the remaindermen object.
• Under federal rules, a remainder is contingent if it is created in an unascertained person or is subject to a condition precedent, or both. In New York, any future interest in a transferee that is subject to a condition precedent is called a remainder subject to a condition precedent. This includes shifting or springing executory interests.
  
• The RULE in SHELLEY'S CASE has been abolished in New York. The rule states that when O conveys to A for life, then, on A's death, to A's heirs, the present and future interests would merge into a fee simple absolute if A is alive. Instead, this conveyance leads to a life estate to A, a contigent remainder to A's unknown heirs, and a possible reversion to O.
• The DOCTRINE OF WORTHIER TITLE has been abolished in New York with respect to transfers taking effect after September 1, 1967. The doctrine voids a conveyance to O's heirs if O is still alive and leave A with a fee simple. Since New York does not follow the rule, O's heirs have a contingent remainder and A has a life estate.
• In New York, the vested remainder subject to complete defeasance is called the vested remainder subject to complete defeasance. Duh. But, sometimes, in other states, it is referred to as the vested remainder subject to total divestment.
• New York has adopted the common law rule against perpetuities with regard to any disposition other than a charitable trust and powers of appointment. This means it has rejected the cy pres doctrine of reforming a disposition that violates the RAP so that the grantor's intentions are as closely realize as possible without a RAP violation.
• Any age contingency in New York is reduced to 21 years if it would otherwise violate the rules against perpetuities.
• New York has modified the fertile octogenarian principle by presuming that a woman over 55 cannot have a child.
• New York's suspension rule adopts common law rules against perpetuities for suspension of the absolute power of alienation. Thus, an interest is viod if it suspends the power to sell or transfer for a period longer than "lives-in-being plus 21 years."
• In a joint tenancy, there must be four unities: time, title, identical interests, and the right to possess the whole of the property. To achieve a conveyance at the same time would require a straw man for a person already in possession of the property that wished to share it in joint tenancy. However, in New York, the need for a straw man to achieve the four unities has been eliminated.
• New York follows the "lien theory of mortgages," whereby a joint tenant's execution of a mortgage on his or her interest will not severe the joint tenancy. This is in opposition to the title theory, where a mortgage executed on a share of the joint tenancy severs the joint tenancy.
• New York recognizes the tenancy in the entirety created by a husband and wife.
• In New York, there is implied ouster, whereby a tenant in a tenancy in common is in exclusive possession for more than 20 years. This creates adverse possession of the land subject to the tenancy in common.
• In New York, the landlord who elects to holdover a tenant creates an implied month-to-month periodic tenancy, unless otherwise agreed.
  
• In New York, the landlord terminating a tenancy at will must give a minimum of 30 days written notice of termination.
• In New York, a landlord's acceptance of rent subsequent to expiration of the term will create an implied month-to-month periodic tenancy, unless otherwise agreed.
• Abesent tenant's express undertaking to restore the premises in the event of their destruction, if the premises are destroyed through no fault of the tenant, tenant may quit the premises and surrender possession without any further duty to pay rent in New York.
• In New York, self-help is flatly prohibited and entitles tenant to treble damages.
• New York does not require a landlord to mitigate when tenant abandons the premises.
• In New York, unless the lease provides otherwise, a residential tenant may not assign withut L's written consent. This is contrary to the general consensus, where a lease may be assigned of sublet freely absent an expres provision. But, by contrast to this rule, in New York, a tenant in a residential building having four or more units has the right to sublease subject to the landlord's written consent, which cannot be unreasonably withheld. If consent is unreasonably withheld, NY courts deem it to be consent anyway.
• The New York statutory period for an easement by prescription (by adverse possession) in ten years of open, continuous, actual hostile use.
• There are three forms of notice for an implied equitable servitude: actual, record, and inquiry notice. In New York, record notice does not encompass the contents of deeds transferred to others by a common grantor. As in, record notice does not encompass the neighbors deeds.
• For adverse possession, the New York statutory period is only ten years. Also, the New York Court of Appeals has held that a possessor's knowledge that a third party holds title is irrelevant.
• The doctrine of equitable conversion makes it so that once a contract is signed, the purchaser is the owner of land, even if he has not yet taken possession. New York does not follow this with regard to damages. In New York, so long as the buyer is without fault, the risk of loss remains with the seller until the buyer has title or has taken possession.
• New York is a race-notice jurisdiction
  

NY distinctions in Evidence (Part II)

• In New York, a witness must be allowed to address prior inconsistent statements while on the stand (intrinsically). Under the federal standard, the timing is flexible. Extrinsic evidence of a prior inconsistent statement may be introduced so long as the witness is alter given the opportunity to return to the sand and explain the statement.
• In New York, a witness' veracity may be impeached with a conviction for any crime. However, if the witness is the criminal defendant, there must be a Sandoval hearing, whereby a judge weighs the probative value of the conviction against the unfair prejudice.
  
  In the federal rules, a conviction used to impeach veracity must have been within ten years of the trial. These crimes must involve veracity or must not be misdemeanors and the probative value must outweigh the prejudice.
• When attacking a witness's character for truthfulness by prior bad acts that have not resulted in a criminal conviction, federal law permits asking about bad acts if they are related to truthfulness. In New York, the bads acts aren't limited to those related to truthfulness, but may include any that show a witness's moral turpitude. For impeaching truthfulness in this manner, only intrinsic evidence is allowed.
• Under the federal rules, any party may impeach any witness, even their own. New York subscribes to the "voucher rule," whereby a party vouches for the credibility of their own witness. The exception to the voucher rule, where impeachment of your own witness is allowed, is with prior inconsistent statements under oath or signed by the witness. In a criminal case, this exception can be used only if the current testimony is affirmatively damaging (rather than a mere "cloud on credibility") to the party who called the witness.
• Under the federal rules, a witness's prior statement of identification is admissible, even if the witness's credibility has not yet been attacked. In New York, the same rule is applied as a hearsay exception in criminal cases, but not in civil cases. In civil cases, the witness's credibility needs to be attacked in order for a prior statement of identification to be admitted.
• In New York, as with all character evidence, rehabilitation of a witness's truthfulness through character evidence can only be done with reputation evidence. Unlike federal, opinion evidence is not permitted.
• Under the federal rules, a prior consistent state can be used to rehabilitate a witness and as substantive evidence. In New York, this prior consistent statement can only be used to rehabilitate and cannot be used as substantive evidence.
• Federal law recognizes four testimonial privileges: attorney/client, husband/wife, clergy/penitent, therapist/patient. New York also recognizes the following three: doctor/patient, social worker/client, reporter/source.
• The Spousal Testimony Privilege: In a federal criminal case, the prosecution cannot compel the defendant's spouse to testify against the defendant. This applies only to criminal cases where the spouses are still currently married. It can be waived by the witness/spouse. New York does not recognize this immunity. Note: this is usually outside the scope of communications between spouses. Communications are covered in a separate spousal exception.
• In New York, a statement by an agent or employee can only be used as a vicarious admission if they had "speaking authority." The federal rules do not require this; instead they only require that the employee speak of matters within the scope of their employment during their agency or employment.
• Former Testimony is allowed as a hearsay exception when a witness is unavailable. Grounds for unavailability in New York include privilege, absence from jurisdiction, and illness or death. Federal grounds include the above list and lack of memory or a stubborn refusal to testify. In civil cases, New York recognizes two more exceptions: the witness is a doctor or lives more than 100 miles from the courthouse.
• In New York criminal cases, the former testimony by now-unavailable witnesses must have been given at a criminal trial, a hearing on a felony complaint, or at a conditional deposition. Defendant and charge must be the same in both the former and current case. Testimony given at a suppression hearing is not valid.
  
• When providing that evidence has disappeared by wrongdoing, the federal standard is is preponderance of the evidence. The New York standard is clear and convincing evidence.
• Dying declarations are allowed as a hearsay exception in any civil or criminal case in federal court. In New York, dying declarations are allowed in criminal homicide cases.
• In New York, a present sense impression hearsay exception requires corroboration. Under federal standards, it does not.
• A statement of then-existing mental, emotional, or physical condition is allowed as a hearsay exception under the federal rules if the statement is a contemporaneous statement concerning the declarant's then existing physical condition or state of mind. In New York, the declarant must be unavailable, and if offered to prove a third person's intent, corroboration is required.
• The hearsay exception for statements made for the purpose of medical treatment or diagnosis is refined in New York to exclude statements as to past symptoms and statements made solely to obtain expert testimony.
• In New York, the public records hearsay exception does not cover conclusions in the public record, only observations. The federal rule says that conclusions can be included.
• To lay the foundation for business records in New York, live testimony must be used for criminal cases. Written certification may be used only in civil cases and only for the business records of a non-party.

NY distinctions in Evidence

• In general, subsequent remedial measures are inadmissible to prove negligence, culpable conduct, product defect, or need for a warning. However, in NY, subsequent remedial repairs are admissible in a products liability action based on liability for a manufacturing defect (as opposed to a design defect).
• Under the federal rules of evidence, a withdrawn guilty plea is inadmissible against a defendant in a pending criminal litigation or subsequent civil case. However, a withdrawn guilty plea is admissible in New York for subsequent civil actions.
• Under the federal rules, a defendant may introduce evidence of his own good character for a relevant trait. This can include reputation or opinion evidence. This "opens the door" for the prosecution to use character evidence to rebut the defendant's evidence with reputation or opinion evidence. Under New York rules, only reputation evidence is allowed. New York excludes both opinion and prior acts from character evidence.
• On cross-examination, the prosecution may question witnesses about their knowledge of specific acts in order to impeach a witness testifying to a relevant character trait. In New York, the prosecution can go one step further: they can rebut the defendant's good character evidence by proving that the defendant has been convicted of a crime that adversely reflects on the character trait in issue. This is completely contrary to the federal rules, which do not allow the prosecution to prove convictions as rebuttal; the purpose of specific acts under federal rules is to allow the prosecution to test the witness' knowledge.
• Under federal rules, a criminal defendant may offer evidence of the victim's violent character to prove that the victim was the first aggressor. This can be either reputation or opinion evidence. New York does not allow evidence of a victim's character to prove that the victim was the first aggressor.
• Although New York does not allow the defendant to introduce evidence of the victim's violent character to prove that the victim started the fight, a defendant can introduce evidence of his knowledge of the victim's character for violence. Note: this is not a propensity use; instead the evidence is being offered for the purpose of showing that the defendant reasonably believed in the need to use self defense.
• In cases involving sexual misconduct, the defendant may not introduce evidence of the victim's reputation for promiscuity or prior sexual conduct. There are two exceptions to this under the federal rules: to show that the victim consented to sexual activity with the defendant and prove that someone other than the defendant was the source of physical evidence. New York also allows evidence of a conviction for prostitution in sexual misconduct cases if the conviction was within the past three years.
• Under the federal rules, propensity evidence is not allowed to prove conduct on a particular occasion. However, the habits of a person or business are admissible to infer how the person or business acted on the occasion at issue in the litigation. New York refines habit evidence more than the federal rules: it allows habit evidence relating to a business but does not allow evidence relation to personal habits unless it is to show a personal habit in the use of a product.
• When using MIMIC evidence (offering evidence of defendant's other crimes for some other purpose than propensity) the federal burden of proof standard is that the prosecution must product sufficient evidence for a reasonable person to conclude that the defendant committed the prior act act by a preponderance of evidence. In New York, the standard is higher: the prosecution must offer clear and convincing evidence that the defendant committed the prior act.
• The federal rules allow the prosecution to offer evidence of prior sexual assaults to prove the defendant's propensity to commit sexual assault. Such is not the case in New York. New York does not subscribe to the idea of "once a rapist, always a rapist."
• When authenticating a document, the federal rules allow authenticity to be inferred if the document is at least 20 years old, is facially free of suspicion, and is found where it would be expected. In New York, the document must be at least 30 years old.
• Federally, duplicates are allowed in lieu of original documents unless there is a genuine question about the authenticity of the duplicate or it would be unfair to admit the duplicate. In New York, photocopies and other duplicates are only acceptable substitutes if the duplicates were made in the regular course of business.
• In New York, a child under the age of nine can give unsworn testimony, but a defendant cannot be convicted solely on this evidence. The testimony of an unsworn child witness must be corroborated.
• There is no dead man's statute under the federal rules. New York has a dead man's statute, which provides that an interested party may not testify against a dead party about communications or transactions with the dead party in a civil action. New York has an accident exception to this rule: an interested party may testify about the facts of an accident (the transaction, if you will). But, the New York dead man's statute still prevents testimony about conversations with the dead.
• As a hearsay exception, a past recollection recorded may be read to the jury if the witness once had personal knowledge and can attest that the recorded recollection was accurate and made at a time when it was fresh in the witness' memory. This standard also presumes that the witness either made or adopted the recollection. Under the New York rules, this recollection can be offered into evidence by the party using the recollection. This is contrary to the federal rules, which stop short of offering the recording into evidence. But, under the federal rules, the opposing party can offer the recording into evidence.
• For scientific evidence, the federal standard is the Daubert standard which allows what might be considered questionable evidence if it has been tested, with known rates of error, peer review, and general acceptance in the scientific community. New York adopts the more restrictive Frye standard, which only asks whether the methodology has been generally accepted by the relevant professional community.
• Under federal rules, an expert witness may not testify whether a defendant had the requisite mental state to commit a crime. In New York, an expert can testify as to the defendant's state of mind.
• Under federal rules, a learned treatise in aid of expert testimony is allowed to be read to the jury as substantive evidence (as a hearsay exception). Contrarily, in New York and learned treatise is only allowed for showing the basis of an expert's testimony or to impeach the opponent's expert (if the expert acknowledged the treatise as a reliable authority or used the treatise in forming their opinion).
• In New York, prior inconsistent statements, even those given under oath as part of a formal proceeding, are not admissible as substantive evidence. They can only be used to impeach. Under federal, sworn statements as part of proceedings can be used as substantive evidence.
  

NY distinctions in Contracts

• NY tests article 2a of the UCC for lease of goods. Under federal, this is governed by common law of contracts.
• In NY, be sure to mention quasi-contract when there is an inequitable result.
• In NY, a signed, written promise not to revoke is enforceable, even without consideration. This echoes the UCC in regard to offers for goods. In other jurisdictions, an option is revocable without consideration.
  
• In NY, a unilateral contract can be revoked even if performance of the unilateral act has begun. Under federal rules, a unilateral contract cannot be revoked once performance of the unilateral act has begun.
• In NY, if someone sends you unsolicited merchandise in the mail, it is a gift and you are under no obligation to pay.
• In NY, there was a case where a house was haunted and this was a material fact that provided a misrepresentation defense to a contract.
• In NY, past consideration is binding if stated in a signed writing and can be proven.
• In NY, the pre-existing duty rule does not apply if modification is in a signed writing.
• In NY, you don't need consideration for an agreement to pay a disputed debt if the promise was signed and in writing.
• In NY, lifetime contracts do fall within the statute of frauds. Under federal law, they do not because one of the parties may die within a year.
• In NY, there is no main purpose exception to surety in the statute of frauds. As in, it doesn't matter if the main purpose of offering a surety was to benefit the offeror, it still needs to be in writing.
• Under Article 2a, a lease, the implied warranty of merchantability is the same as a sale.
• However, under a finance lease, there is no implied warranty. Banks are intermediaries.
• Under Article 2a, the lessor bears the risk of loss. However, if the lease is a finance lease (from a bank intermediary), the leasee bears the risk of loss.
• In New York, a gratuitous assignee of contract rights is irrevocable if it is in writing and signed by the assignor. This would override the federal rule, whereby the last gratuitous in time prevails because a later gift assignment revokes an earlier one.
• In NY, an assignment for consideration must be filed to be valid? This is a general notice requirement for two assignments for consideration.