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#31
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"Mike Granby" wrote in message ... "Larry Smith" wrote: [Much interesting stuff] Thanks for this, Larry. One final question... When you talk about the judge dismissing at the end of the plaintiff's case, is this in front of the jury? No, the judge tells the jury they have some nonjury business and has the bailiff escort them back to the jury room. The idea is not to have the 12 hear the attorneys wrangling. Argument gets hot at this time, and then the judge must rule. If he rules for the plaintiff while the jury watches, it would be arguably prejudicial to the defendant. Or is there some preliminary hearing first? It's usually a 5-minute thing, in which the moving attorney makes his motion, states his reasons, then the other attorney stands on his hind legs, thumps on a lawbook, and howls a rebuttal. The judge will then ask a few questions, then more howling from both sides, then he rules. Sometimes if it's not even close, the judge calls the attorneys to the bench for a "sidebar" and tells the defense counsel he thinks there's enough there for the case to get by the motion to dismiss. He then whispers to the clerk that the motion was made, denied, exception to the defendant, in order to protect defendant's record on appeal -- then the jury are escorted back into the box. I have had jurors come up to me after a case was over with and ask what all the fuss was about during motion time when they were confined in the jury room. I was reading your "getting to the jury" as referring to presenting the case (or part thereof) to a jury, whereas rereading it, it could also mean getting to the jury for consideration. -- Mike Granby, PP-ASEL,IA Warrior N44578 http://www.mikeg.net/plane |
#32
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I would say the instructor's "responsibility" is to assess your
capabilities and report them to you and write them in your syllabus and/or logbook. If you are stupid enough to ignore that assessment and take chances with you life and the lives of others, it is YOU that should be held responsible. Not the instructors, not the FAA, not the NTSB, not the airplane manufacturer, not the flight school, etc. The problem with our society is that the legal system has been allowed to mutate to a point where personal responsibility is no longer a consideration. My thanks to the attorney who is educating us all on the letter of the law. However, I cannot help wondering if there is some missing "check and balance" that would make it less attractive for a plaintiff (and their esteemed attorney) to roll the "lottery" dice. The English system of "loser pays" might ratchet up the stakes a bit for all the ambulance chasers and greedy plaintiff/family members. Good Luck, Mike Jeff wrote: I just had to quote this from the owner of his flight school "This instructor reported back to me later that Pete had no business in this airplane, that he was "way behind the airplane." The situation soon went beyond our control to correct it however when Pete went and took an accelerated, guaranteed instrument course elsewhere. I believe he finished this "Crash" course in mid November, just in time to take his wife and their 13 year old son on a family Thanksgiving Trip to Pennsylvania. I guess the moral of this story is that flight instructors have a responsibility to aviation and the people in it, and this responsibility is not to get your hours as fast as you can for your big airplane job, or to sell a well off student more airplane than he can handle so that you can get a nice commission check" Kevin wrote: http://www.ntsb.gov/NTSB/brief.asp?e...15X45423&key=1 http://www.ntsb.gov/NTSB/brief.asp?ev_id=20001215X45423&key=1 NTSB Identification: NYC01FA040 . The docket is stored in the (offline) NTSB Imaging System. 14 CFR Part 91: General Aviation Accident occurred Sunday, November 26, 2000 in RIXFORD, PA Probable Cause Approval Date: 11/14/01 Aircraft: Mooney M20K, registration: N252MW Injuries: 3 Fatal. The pilots family is suing the FAA for wrongful death. This report clearly indicates the pilot was at fault. Inexperienced in IMC and flew it into the ground. What am I missing here? __________________________________________________ _____________________________ Posted Via Uncensored-News.Com - Accounts Starting At $6.95 - http://www.uncensored-news.com The Worlds Uncensored News Source |
#33
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"Peter Gottlieb" wrote in message
et... "Larry Smith" wrote in message ... A highway patrolman's motor vehicle accident report is not admissible in court. Except insofar as he is a witness, his report is mostly a document containing hearsay. Are you suggesting that hearsay be admitted in court? A rigorous NTSB investigation is very different from a highway patrolman's report. I can't agree they're rigorous at all, where it involves GA crashes and occupants who are not famous or important. I've observed the on-scene work in two fatal cases, and in one case I had dinner at a Holiday Inn with the investigators -- I was a not-too-useful witness, and we we all from out of town. They need only probable cause and can call it they see it from the basic facts with a few hours work at the site and in talking to various people, pending only toxicology results. Here, two investigators arriving at 1:00PM, talked to a dozen people, examined wreckage, and tentative conclusion by dinner time. Also, they weren't NTSB people, but FAA FSDO working under delegation. They seemed very good at what they do, but I don't think you'd want them as defense witnesses. Better to hire experts and investigators to spend the time to do a thorough job, arriving at a conclusion from other than first impression. Fred F. |
#34
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"Kevin" wrote in message newsr2yb.253469$275.925372@attbi_s53... | | The pilots family is suing the FAA for wrongful death. This report | clearly indicates the pilot was at fault. Inexperienced in IMC and flew | it into the ground. What am I missing here? | The plaintiff does not always expect to win. Frequently the plaintiff sues, hoping that the high cost of defense will force the defendant to settle. On the other hand, if the suit does go to trial, the plaintiff can rely on a legal system that weights the rules of evidence very heavily against the defendant and chooses jurors based on their ignorance and gullibility. Then you hear lawyers, judges, etc., bemoaning the fact that there is no respect for the law any more, forgetting that people will only respect the respectable. |
#36
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Again, thanks, Larry, for taking the time to explain this.
-- Mike Granby, PP-ASEL,IA Warrior N44578 http://www.mikeg.net/plane |
#37
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On Sat, 29 Nov 2003 14:55:31 +0000, Kevin wrote:
The pilots family is suing the FAA for wrongful death. This report clearly indicates the pilot was at fault. Inexperienced in IMC and flew it into the ground. What am I missing here? Nothing, just stupidity. It's like the idiot who landed on a closed runway at MBY and did $20K damage to his plane and decided to sue the city since they didn't mark it, or put out notams. Both were done of course, but stupidity knows no limits... |
#38
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"Mike Granby" wrote in message ... Again, thanks, Larry, for taking the time to explain this. -- Mike Granby, PP-ASEL,IA Warrior N44578 http://www.mikeg.net/plane Thank *you*, Mike, for the opportunity to respond, and for your splendid courtesy. |
#39
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"Larry Smith" wrote in message ...
.... Usually judges let even flimsy cases go to the jury but if the plaintiff is playing with 33% of the marbles and the defendant has 67%, the judge will step in and dismiss sooner or later. That's my experience, even though the judge waits until ALL the evidence is in, or even until after a verdict for the plaintiff. As a practicing plaintiff's lawyer, I appreciate your "defense" of the plaintiff's burden of proof. However, to be fair, in real life the judges are loath to dismiss a case once the trial begins. Even if the plaintiff has 33% of the marbles and the defendant has 67%, the judge will (in fact, should) let the case go to the jury. That is why we try cases to juries, rather than just judges. Although the judge can reject a jury's verdict, it is EXTREMELY rare,at least on liability. Although it happens, it is virtually anecdotal. The rule, at the end of the plaintiff's evidence and upon motion to dismiss by the defendant, is that if the plaintiff has failed to show evidence of each of the elements of his case, he is subject to dismissal. If this were the case, it would already have been dismissed at the summary judgement stage (ie, "thrown out of court"). The court, if it finds by considering the evidence in the light most favorable to the plaintiff that the plaintiff has failed to establish he is entitled to relief, may enter an order of dismissal against the plaintiff. So let's assume that each of the plaintiff's witnesses testifies that X could have occurred or might have occurred, instead of saying that it in fact DID occur, you won't get THAT to the jury. I agree that the plaintiff's witnesses can't win the day by saying that it "could have" or "might have" occured this way. However, they need only say that it "more probably than not" happened this way. They do not need to say that it "did" happen this way. I know that some criminal cases have to meet this test in preliminary hearings, but that makes sense, as the burden of proof in the case is much higher ie. beyond a reasonable doubt. I thought you could only get a civil case struck out (and thereby prevent it coming before the jury) if you could show that the case has no chance of succeeding even if all the facts fall so as to favor the plaintiff? The point is that a plaintiff must affirmatively produce evidence to support his allegations sounding in tort against the FAA by competent evidence. When a judge dismisses at the end of the plaintiff's evidence, and he does it quite often in my neck of the woods, it's not only because the plaintiff's case has suffered a fatal flaw in an element of proof but also because his evidence preponderates against a verdict any jury might award him. I agree 100%. There are a whole battery of motions a plaintiff must withstand before he collects, and his case had better be better than "might have occurred" or he ain't going to collect. This law isn't so much written in the books as it is in the history of lawyering. Again, I agree 100%. I'm not a lawyer, I'm not either. I quit practicing some time ago. But I tried quite a few jury cases in civil and criminal courts, and it's not like rolling dice or showing that a state of facts may have existed. so I could easily be 100% wrong here, but I'd welcome some clarification so I might better understand the procedures involved. I believe you have a good grasp of what it takes to get past an order of dismissal and get the case to the jury. Plus you have a good grasp of the difference in the burden of proof in a civil case and a criminal case. -- Mike Granby, PP-ASEL,IA Warrior N44578 http://www.mikeg.net/plane |
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