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U.S. Liability for Damage to Vessels Suspected of Drug Smuggling - Ninth Circuit Decision

The Ninth Circuit Court of Appeals just handed down a decision relating to the federal government's liability for suspected drug smugglers' vessels, damaged during the law enforcement investigation.  The case is Tobar v. United States and the opinion can be found here.

The U.S. Coast Guard suspected an Ecuadorian fishing boat of illicit activities.  With authorization of the Ecuador government, the Coast Guard boarded the boat, searched for drugs and towed the boat to Ecuador.  The crew brought various tort claims against the U.S. government.

The government argued that it was immune from the claims of Ecuadorian citizens.The trial court agreed.

On appeal, the Ninth Circuit found that the United States had waived sovereign immunity under the Public Vessels Act.  Under that Act, the United States does allow for citizens of foreign countries to bring claims in federal court if their own country would give a forum to a United States citizen.  This is called reciprocity.  So, the litigants put forth evidence of what Ecuador law would be if an American brought the same damage suit in its courts.  The Ninth Circuit found that Ecuador would give a forum.

The government then sought to avoid liabilty by arguing that the discretionary function exception to the Federal Tort Claims Act barred liability.  If the government has the discretion to act or not act, then liability cannot be found.  But, the Public Vessels Act does not have an explicit discretionary function exception, like the FTCA does.  The Ninth Circuit, and other circuits, have read into the Public Vessels Act, a discretionary function exception and the Ninth Circuit followed that logic here.

Finding that the government did not have discretion to NOT pay damage claims, the Ninth Circuit remanded the matter to the trial court for a trial.

I don't see any circuit splits, but the Supreme Court may be interested in a court-inserted exception to a statute.  Stay tuned.

Law in Film Festival - September 2013 - Review of My Cousin Vinny

by Mark M. Murakami

Sometimes it is about the process. In law school, students may learn “the law,” but in order to actually represent clients, they need to know the process, and figure out the rules—written and unwritten—that make courtrooms work. As the old joke goes, “a good lawyer knows the law, a great lawyer knows the judge.”

Despite its slapstick cover, legal procedure is what My Cousin Vinny is all about. This 1992 film is a comic fish-out-of-water take on the murder trial of two Brooklyn “youths” who find themselves at the mercy of southern fried justice.

And their only hope appears hopeless: Vincent Gambino, Esq. (Joe Pesci), one of the accused’s cousin, a personal injury lawyer who barely passed the bar after multiple attempts, agrees to come down and defend them. Vinny has never tried a case in Brooklyn, much less a capital murder case in a Beechum County court against a seasoned prosecutor, with a no-nonsense Yale-educated judge running things. But he hits the books, and after a few fits-and-starts, begins to practice law.

Evidentiary foundations, discovery and disclosures, and cross-examination technique may all be beyond Vinny’s pay grade, but over the course of the film, his talents rise as he begins to understand and apply the procedures and customs of the court. With his New York personality running headlong into more genteel Southern traditions, Vinny and his fiancé (Academy Award winner Marisa Tomei) slowly learn the process, and the law.

My Cousin Vinny is the #3 film on the American Bar Association’s list of lawyers’ favorite law movies for good reason: despite it being a broad comedy, it is known for its surprising legal accuracy. When I attended the Naval Justice School in 1999, Vinny was repeatedly used during trial advocacy classes to teach brand new Navy, Marine Corps and Coast Guard judge advocates (I have no doubt that Air Force and Army JAGs reading this will say, “that figures”).

The film also made his way into oral argument at the United States Supreme Court (mentioned by another New York lawyer, Associate Justice Antonin Scalia, who admits that this is his favorite legal movie). In United States v. Gonzalez-Lopez, Justice Scalia referenced the film asking the arguing lawyer, “What about the real case of My Cousin Vinny?” The case was about whether the accused has the right to an attorney of their choosing, even if the defendant’s choice was an out-of-state attorney who had been subject to disciplinary action by a judge in an earlier case. Justice Scalia, who ultimately wrote the opinion which concluded that the defendant was indeed entitled to counsel of his choosing (however Vinnie-ish that choice appeared to be), seemed committed to the constitutional principle that the accused has the right to counsel of his choosing, regardless of the lawyer’s skill or experience. Or lack thereof.

Justice Scalia made a point familiar to all lawyers (and perhaps their clients): “I don’t want a competent lawyer. I want a lawyer who’s going to get me off. I want a lawyer who will invent the Twinkie defense. I would not consider the Twinkie defense an invention of a competent lawyer. But, I want a lawyer who is going to win for me.” In that vein, Vinny Gambini certainly qualifies. Despite his troubles along the way, he has his Perry Mason moment where he magnificently extracts the crucial opinion from his expert witness. His qualification of his fiancé as an expert on tire treads has become the stuff of legends. And yes, it’s pretty accurate.

My Cousin Vinny reminds us that not all clients care how difficult it was for us to pass the bar, or what law school we attended. They want to win their case.

As this film shows, understanding the process certainly helps.