110 Criminal Law

110XXXI Counsel

110XXXI(B) Right of Defendant to Counsel

110XXXI(B)11 Deprivation or Allowance of Counsel

110k1852 k. Particular Cases in General.

Comments by trial judge on day before closing argument that lawyers wanted 40 minutes apiece and “it is too hot to listen to hot air in this hot air so we’ll recess until the morning and hopefully it will cool down by then,” were not improper, when put in context, despite defendant’s contention that remarks violated Sixth Amendment right to effective assistance of counsel; comments were not directed at either counsel, were isolated, and were part of judge’s explanation as to why closing arguments would not occur until following morning.
United States v. Morales, 868 F.2d 1562 (11th Cir. 1989)

170A Federal Civil Procedure

170AXI Dismissal

170AXI(B) Involuntary Dismissal

170AXI(B)3 Pleading, Defects In, in General

170Ak1772 k. Insufficiency in general.

A claim is not considered “implausible” simply because the allegations are fanciful or because it defies reason or rests on assertions contrary to the received wisdom of common experience.
Kuryakyn Holdings, Inc. v. Just In Time Distribution Co., 693 F. Supp. 2d 897 (W.D. Wis. 2010)

Suggested by David F. Herr; Maslon Edelman Borman & Brand, LLP; West author; Minneapolis, MN

157 Evidence

157X Documentary Evidence

157X(D) Production, Authentication, and Effect

157k369 Preliminary Evidence for Authentication

157k381 k. Books and Other Printed Publications.

Wall Street Journal is self-authenticating, and thus extrinsic evidence of authenticity is not condition precedent to its admissibility.
Armstrong v. Marathon Oil Co., 583 N.E.2d 462 (Ohio Ct. App. 1990)

157 Evidence

157I Judicial Notice

157k12 k. Statistical Facts.

Courts cannot take judicial notice of alleged normal mortality of turkeys being raised on turkey farm.
Automatic Poultry Feeder Co. v. Wedel, 28 Cal. Rptr. 795 (Cal. Ct. App. 1963)

Suggested by Jennifer Needs; Irvine, CA

29T Antitrust and Trade Regulation

29TIII Statutory Unfair Trade Practices and Consumer Protection

29TIII(A) In General

29Tk133 Nature and Elements

29Tk135 Practices Prohibited or Required

29Tk135(1) k. In general; unfairness.

The “rascality test,” used to determine which commercial actions, not specifically delineated, are covered by the Consumer Protection Act (CPA), requires the plaintiff to show “that the defendant’s acts attained a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce.”
Beer v. Bennett, 993 A.2d 765 (N.H. 2010)

Suggested by Denise Luke, West Principal Attorney Editor

188 Gaming

188I Gambling Contracts and Transactions

188I(B) Rights and Remedies of Parties

188k31 Parties to Speculative Transactions

188k33 k. Recovery of Property or Proceeds.

Evidence supported Gaming Commission’s conclusion that signage on progressive video poker machine was ambiguous, thus entitling casino patron to primary progressive jackpot for descending sequential royal heart flush, even though machine’s signage listed royal flush in ascending order; there was evidence that a sequential royal flush could be ascending or descending, and machine’s signage could be interpreted as merely setting forth an example of a sequential royal flush.
IGT v. Kelly, 778 So. 2d 773 (Miss. 2001)

Suggested by Ben Frisch, West Attorney Editor

110 Criminal Law

110VIII Jurisdiction

110k101 Transfer of Causes

110k101(1) k. Between Federal Courts.

Venue of prosecution arising from alleged large-scale scheme involving bribery of Alaska Borough officials and consultants would be transferred from district of Alaska to the Western District of Washington for the convenience of parties and witnesses, and the interest of justice, where all defendants resided and conducted business in Seattle area, majority of defense witnesses were located in Washington, criminal acts set out in indictment were substantially connected to Washington as well as Alaska, and periodic and unpredictable eruptions of volcano in Alaska were having adverse effect on scheduling of flights into and out of Alaska.
U.S. v. McDonald, 740 F. Supp. 757 (D. Alaska 1990)

Suggested by Chris Miller; Beckley, WV

113 Customs and Usages

113k9 Application and Operation

113k13 k. Reference to or Incorporation of Custom in Making Contract.

The words “usual and customary,” in provision of contract granting exclusive ice cream privileges at pavilions and boating privileges on lake in city park, that city will furnish the usual and customary music, both as to amount and quality, do not refer to usage or custom in the technical legal sense, but to the ordinary and usual practice of the city in the park and require the music to be at the same places as before.
City & County of Denver v. Bowen, 184 P. 357 (Colo. 1919)

Suggested by Frank Gibbard; 10th Circuit Staff Counsel; Denver, CO

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and Press

92XVIII(Y) Sexual Expression

92k2189 Obscenity in General

92k2191 k. Lack of Constitutional Protection.

Constitutional right of a person to possess obscene material in the privacy of his own home does not confer on another a First Amendment right to sell and deliver such material.
People v. Golden, 97 Cal. Rptr. 476 (Cal. Ct. App. 1971)