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Intro: Many thanks to Ken, Jim, and Henly for stepping in on short notice and fulfilling my duties last Sunday and Wednesday. A thank you to this congregation for being so understanding and considerate when I have to be away. It is good to be home.
This introduces to us the setting on one of the most familiar miracles of Jesus. The resurrection of Lazarus is His final public miracle, and as such is viewed as a bridge between His public and private ministry.
This miracle became a foundational event for the disciples’ later faith, as it evidenced that Jesus could overcome the power of the grave, thus previewing Jesus’ own resurrection. In connection with His enemies, it became the turning point of their animosity and murderous plans.
John 11:53 – Then, from that day on, they plotted to put Him to death.
This is a remarkable event with many implications and lessons for us. We will walk through this miracle together and point out some of these lessons as we go.
I. The Characters: Unlike some of Jesus’ miracles, this event involves those who were close personal friends.
A. Lazarus, and his two sisters, Mary and Martha. Jesus often stayed in their home in Bethany, about 2 miles from Jerusalem. Jesus’ love for them is mentioned several times in John’s narrative.Lazarus is a shortened form of the Hebrew name Eleazar, which means “God has helped,” or “helped by God”—a fitting name in light of this story.
note: The unembellished introduction of Lazarus only as “a certain man” who was sick emphasizes that Lazarus is not the primary focus of the story. This is about Jesus. He is the true character in view.
II. The Message: So the sisters sent word to Him, saying, “Lord, behold, he whom You love is sick.” Jesus had left the region around Jerusalem because the Jewish leaders sought to kill Him. But surely He would return to heal His good friend, Lazarus.
A. There is a humility in the sisters’ message. They do not ask Jesus for anything specifically. They only voice their concern, and reference Jesus’ love for their brother (without even mentioning Lazarus’ name). They do not demand or instruct Jesus. They seem to trust in Jesus’ love for Lazarus.
B. Notice that they do not say, Lord, the one who loves you is sick. Lazarus did love Jesus, but the blessing Jesus would provide is not based on how much Lazarus loved Jesus, but on how much Jesus loved him. They did not attempt to bribe Jesus or motivate Him based on how much Lazarus had done for Him. They knew Jesus loved Lazarus – that was enough. Isn’t it thrilling to know that God’s blessings our not activated on the basis of my love for Him – that love fails often. But He never fails to love me.
1. How would God be glorified in Lazarus’ sickness? Was it just that sickness and death would be overturned. That is certainly what God would desire. The added years of Lazarus’ life? The answered prayers of the sisters? – the text itself (words of Jesus) answer this question. Why was Jesus’ doing this?
John 11:15 – And I am glad for your sakes that I was not there, that you may believe – The purpose Of Jesus’ delay (allowing Lazarus to die) was to create faith in some.
John 11:25-26 – He who believes in Me, though he may die, he shall live. And whoever lives and believes in Me shall never die. Do you believe this?” – Jesus tells Martha that Lazarus will rise from the dead, and then points to the necessity of faith – will she believe so that God will be glorified?
God would be glorified when others would believe on Jesus. That what Jesus was doing. That was the purpose of Lazarus’ suffering and death. God will allow us to suffer so that others might believe.
III. The Delay: John 11:5-6 – Now Jesus loved Martha and her sister and Lazarus. 6 So, when He heard that he was sick, He stayed two more days in the place where He was. John’s statement in v. 5 is not arbitrary. It is the preface to what he reveals in v. 6.
A. Jesus did not leave immediately for Bethany. He waited and Lazarus died. But that did not mean that He did not love Martha, Mary or Lazarus. In fact it may suggest that He loved them so much that He stayed two more days! God’s love cannot be measured by time. (If God does not give me what I want NOW He does not love me) Jesus’ delay would actually contribute to N increase in the faith and joy of Mary, Martha, and Lazarus.
A. It was not time for Him to die (v. 9-10) – It was still daytime (are there not twelve hours in the day); as long as He was alive there was no need for their faith to stumble. But the night would come, and He would die, and they would stumble – But not now.
B. Lazarus was dead (v. 11) Jesus initially told them Lazarus was asleep and He was going to wake him up. Sleep is used throughout the Bible as a euphemism for death, particularly that of believers (cf. the repeated use of the phrase “slept with his fathers” in 1 and 2 Kings and 2 Chron). Jesus was displaying His confident power over death – it was just a sleep from which one could be easily awakened.
1. The disciples misunderstand. If Lazarus is sleeping, then let him alone. He will get better. Jesus ended their confusion, and said to them plainly, “Lazarus is dead.” Here is an unmistakable indication of the Lord’s omniscience, since the messenger had merely said that Lazarus was sick (v. 3), and there was no way for Jesus to have heard that Lazarus had already died.
2. Jesus’ next statement, “I am glad for your sakes that I was not there, so that you may believe,” does not mean that He rejoiced in the death of His dear friend. The Lord’s point was that Lazarus’ resurrection from the dead would do far more to strengthen the disciples’ faith than a healing alone.
3. v. 16 – Then Thomas, who is called the Twin, said to his fellow disciples, “Let us also go, that we may die with Him. The statement of Thomas may reflect the other disciples as well. It seems to indicate a strong love, but a weaker faith. Thomas loves Jesus enough to go to Bethany and die with Him, but his faith is so weak he knew he was sure he would die if he went. Devotion and despondency at the same time.
a. Do you love Jesus enough to die with Him? It might be difficult for us to know that about ourselves. But most of us have not even been willing to live for Him in a secure and safe environment. We live for ourselves, our goals, our pleasure, our possessions.
V. Jesus’ Arrival: (v. 17-19) After a day’s journey, Jesus arrives in Bethany. Lazarus had been dead for 4 days. Those must have been a perplexing 4 days for Mary and Martha. Where was Jesus? Why did He allow Lazarus to die? Upon Jesus’ arrival we are introduced to another character in the story – the Jews from Jerusalem. John often used the term “the Jews to refer to the Jewish leaders who were Jesus’ enemies throughout. There were certainly skeptics in this crowd, but they are sympathetic to the sisters, and they had come to comfort them.
A. Jesus and Martha: As we have mentioned, this event is about creating faith in Jesus. At the center of Jesus’ intention is the faith of Lazarus’s sisters, Mary and Martha. Martha is the first to meet Jesus when He arrives. She has faith, but not enough faith.
John 11:20-22 – 20 Now Martha, as soon as she heard that Jesus was coming, went and met Him, but Mary was sitting in the house. 21 Now Martha said to Jesus, “Lord, if You had been here, my brother would not have died. 22 But even now I know that whatever You ask of God, God will give You.” Some suggest that Martha is scolding Jesus for not being there earlier. But I believe that she is expressing her grief (if only) at the circumstance and her faith in Jesus. She truly believed that Jesus could have helped Lazarus when he was alive. But now he was dead.
2. Martha expressed her faith that even now, if Jesus asks God, God will do something for Him. She recognizes Jesus’ dependence on the Father, and acknowledges her dependence on Jesus.
3. We would think that Jesus’ words here would have caused Martha to explode in joy – let me go tell Mary and the others! But her doubt shines through. She assumes He is talking about the resurrection on the last day. She tough Jesus was telling her something she already knew.
4. She believed that Christ had the power to raise Lazarus at the last day but couldn’t handle it when he had been dead for only four days. Does that seem odd? Do people rejoice in the power of God for the future and yet doubt His power today? We do that all the time. We believe in heaven and all its glories, but do not have confidence that God can, or will, solve our problems today. “If you can trust God over there, you can trust Him here. If His power is going to be exhibited there, it’s the same power right here. Many Christians who believe in a resurrection of the body later on, do not believe that God can or will help them overcome the temptation to sin now. The power of Jesus resurrection is the power of my new life.
a. Jesus’ words are the reason for what is about to happen. Jesus was going to demonstrate what He had just affirmed.
b. Jesus’ next two statements are not redundant: v. 25 -, “he who believes in Me will live even if he dies, and V. 26 – everyone who lives and believes in Me will never die,” They teach separate, though related, truths.
The one who believes in Jesus will live even if he dies physically because He will raise him on the last day (5:21, 25-29; 6:39-40, 44, 54).
And since everyone who lives and believes in Him has eternal life, they will never die spiritually (as long as they continue to be believers. Physical death does not interrupt eternal life. He who has the Son has the life.
As a result, Christians can say with Paul, “O death, where is your victory? O death, where is your sting?” (1 Cor 15:55).
Conclusion: If you want to investigate the rest of the story with us, you will need to come back tonight. We will follow Jesus to the grave of Lazarus and witness what happens there. But I will mention it once more – this event was about belief. Jesus is the resurrection and the Life. It is only through Him that power of death can be erased. Do you believe this?
After Jesus’ own resurrection He sent His apostles into all the world with a message of hope. It was not the hope of a better government, or world peace. It was not the hope of a clean environment or cleansed earth. It was the hope of a resurrection.
Rom 6:3-11 – Or do you not know that as many of us as were baptized into Christ Jesus were baptized into His death? 4 Therefore we were buried with Him through baptism into death, that just as Christ was raised from the dead by the glory of the Father, even so we also should walk in newness of life. 5 For if we have been united together in the likeness of His death, certainly we also shall be in the likeness of His resurrection, 6 knowing this, that our old man was crucified with Him, that the body of sin might be done away with, that we should no longer be slaves of sin. 7 For he who has died has been freed from sin. 8 Now if we died with Christ, we believe that we shall also live with Him, 9 knowing that Christ, having been raised from the dead, dies no more. Death no longer has dominion over Him. 10 For the death that He died, He died to sin once for all; but the life that He lives, He lives to God. 11 Likewise you also, reckon yourselves to be dead indeed to sin, but alive to God in Christ Jesus our Lord.
1 Peter 1:3-5 – Blessed be the God and Father of our Lord Jesus Christ, who according to His abundant mercy has begotten us again to a living hope through the resurrection of Jesus Christ from the dead, 4 to an inheritance incorruptible and undefiled and that does not fade away, reserved in heaven for you, 5 who are kept by the power of God through faith for salvation ready to be revealed in the last time.

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GOVERNOR APARTMENTS, INC. vs. HUGH A. CARNEY, trustee.
CONTRACT. Writ in the Municipal Court of the City of Boston dated December 4, 1958.
The action was heard by Adlow, C.J.
William J. Carr, for the defendant.
S. Myron Klarfeld, for the plaintiff.
WHITTEMORE, J. This was an action in the Municipal Court of the City of Boston to recover money paid under compulsion. The trial judge found for the defendant. The Appellate Division vacated the finding and ordered a finding for the plaintiff in the amount claimed, $597.65.
premises, 162 and 164 Allston Street and 186, 190, 192 and 194 Kelton Street, in said Boston, said mortgage is recorded in Suffolk Registry of Deeds.
"Ten days of grace will be given on the above arrangement if required.
Within the extended term of the agreement, the plaintiff, on December 3, 1958, presented to the defendant a check for $77,500, whereupon the defendant demanded interest to December 3, 1958, in the amount of $597.65. An argument ensued. The plaintiff's representative said that the defendant had previously agreed that there would be no additional charge for interest and that the plaintiff was to have the discharge upon payment of the stipulated sum. The defendant denied this and the argument finally reached the point at which, according to testimony for the plaintiff, the defendant said, "If you do not pay this interest, I will foreclose." The plaintiff's representative as a result made out his personal check for $597.65 and the defendant "at the request of the plaintiff" wrote on a slip of paper, which showed the interest computations, the following: "Boston, December 3, 1958. The above amount was paid under protest to Hugh A. Carney as he is trustee of the Carney Newman Trust and not individually." The plaintiff had obtained a replacement mortgage at a higher rate.
in scope to principal on mortgage and in no manner affecting interest running up to the time of discharge." Thus he limited the significance of his ruling that "the defendant agreed to consider his mortgage as `fully paid' and to issue a discharge therefrom upon the payment . . . of $87,500 within the time agreed upon," and of his findings that the plaintiff paid $87,500 within the agreed time and that the defendant refused to issue a discharge.
The judge found that the defendant threatened to foreclose the mortgage and to demand $93,000 unless the interest payment was made. He also ruled that "Upon the evidence, the plaintiff was compelled to pay the additional sum of $597.65 as interest in order to obtain a discharge of the mortgage . . . [and] the plaintiff did not voluntarily make a payment of $597.65 . . .." He declined to rule as requested that the evidence and the law warrant a finding for the plaintiff.
We agree with the Appellate Division that the conclusion was wrong that the agreement was limited to specifying an amount to be paid on the principal of the mortgage. There was nothing ambiguous in the inclusive specification "said mortgage is to be considered as fully paid and a discharge shall issue therefor." Evidence could not be received to show a different agreement or to create an ambiguity. Glackin v. Bennett, 226 Mass. 316, 319-320. Tilo Roofing Co. Inc. v. Pellerin, 331 Mass. 743, 745-746. Dekofski v. Leite, 336 Mass. 127, 129. Forte v. Caruso, 336 Mass. 476, 481. The construction of such a contract presents a question of law for the court (Hiller v. Submarine Signal Co. 325 Mass. 546, 549-550, Taylor v. Gowetz, 339 Mass. 294, 300) and the defendant would take no advantage if the judge's erroneous conclusion were construed as a finding.
that the plaintiff was faced with litigation as to whether the October 16, 1958, agreement was valid and controlling as well as with continuance of the litigation in respect of the defendant's right to foreclose, and, additionally, the loss of the replacement mortgage which the plaintiff had negotiated elsewhere. The finding was warranted that the defendant, to get his way, had brought to bear his power to make trouble for the plaintiff, regardless of its rights under the agreement. Such finding was in effect made, reading the finding of the threat to foreclose with the rulings that the evidence showed compulsion and involuntary payment. A payment made in such circumstances is recoverable. Cazenove v. Cutler, 4 Met. 246, 249. Murphy v. Brilliant Co. 323 Mass. 526, 529-530. Williston, Contracts (Rev. ed.) Sections 1603-1607; 1617; 1623. Compare Carey v. Fitzpatrick, 301 Mass. 525, 528-529. The salutary result of allowing recovery on such facts is that the area of possible litigation is surely confined to the only issue genuinely in dispute, and time is afforded to determine that issue in due and seemly course. The defendant by his voluntary indorsement of the fact that the payment was under protest perhaps gave some recognition of the reasonableness of narrowing and reserving the issue, but it is unnecessary to decide that.
It was error to refuse to rule that the evidence and law warranted a finding for the plaintiff. The findings and rulings in respect of legal compulsion require a finding for the plaintiff.

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§ 475-6 Continuation of existing uses.
§ 475-7 Restrictive covenants no substitute.
§ 475-8 Higher or more restrictive standards.
§ 475-9 Rent, sale or lease in violation.
§ 475-15 Ownership divided by boundary lines.
§ 475-16 Higher and better use.
§ 475-17 Required for each structure.
§ 475-18 Designation of zone lot by owner.
§ 475-19 Conformance to zone regulations.
§ 475-49 Fences and walls.
§ 475-60 Fences and walls.
§ 475-71 Fences and walls.
§ 475-71.1 Conditions on accessory dwelling units (ADU).
§ 475-82 Fences and walls.
§ 475-82.1 Conditions on accessory dwelling units (ADU).
§ 475-93 Fences and walls.
§ 475-93.1 Conditions on accessory dwelling units (ADU).
§ 475-103 Fences and walls.
§ 475-110 Mixed rental residential use permitted as a conditional use.
§ 475-116 Fences and walls.
§ 475-121 Zone lot area.
§ 475-125 Fences and walls.
§ 475-135 Flagpoles and antennas.
§ 475-136 Fences and walls.
§ 475-137 Flammables and explosives.
§ 475-138 Outdoor storage; material and waste storage.
§ 475-147 Water towers, flagpoles and antennas.
§ 475-148 Fences and walls.
§ 475-149 Outdoor storage and waste disposal.
§ 475-151 Parking lot design.
§ 475-152 Loading space design.
§ 475-153 Off-site parking plan and parking waiver.
§ 475-154 Parking spaces required.
§ 475-155 Applicability; compliance; state regulations.
§ 475-159 Permitted signs by district.
§ 475-163 Building complex signs.
§ 475-165 Home occupation signs.
§ 475-166 For-sale or for-rent signs.
§ 475-167 Temporary construction signs.
§ 475-168 Sign area measurement.
§ 475-181 Compliance deadline; temporary permits.
§ 475-184 System of numbering.
§ 475-187 Violations and penalties.
§ 475-190 Individual space requirements.
§ 475-191 Density; location of units.
§ 475-195 Length of stay.
§ 475-197 Additional consideration for conditional use.
§ 475-199 Prohibited placement of manufactured homes.
§ 475-200 Permitted placement of single manufactured homes.
§ 475-201 Nonconforming manufactured homes.
§ 475-202 Designation of manufactured home districts.
§ 475-204 Violations and penalties; enforcement.
§ 475-206 Limitations and restrictions.
§ 475-207 Nonconforming manufactured homes in manufactured home districts.
§ 475-209 Title of article.
§ 475-212 Shading and location of collectors.
§ 475-213 Existing structures or vegetation.
§ 475-218 Administration and enforcement authority.
§ 475-219 Town liability denied.
§ 475-244 Site design and function.
§ 475-262 Consideration if subdivision plat included.
§ 475-266 Creation of condominium.
§ 475-268 Construction of declaration and bylaws.
§ 475-269 Description of units.
§ 475-270 Contents of declaration.
§ 475-271 Allocations of common interests, votes and expenses.
§ 475-272 Limited common elements.
§ 475-274 Exercise of development right.
§ 475-275 Alteration of units.
§ 475-276 Subdivision of units.
§ 475-278 Amendment of declaration.
§ 475-279 Organization of unit owners' association.
§ 475-280 Powers of unit owners' association.
§ 475-282 Upkeep of condominium.
§ 475-283 Assessments for common expenses.
§ 475-284 Obligations of unit owners.
§ 475-285 Building and developmental standards.
§ 475-295 Policy; initiation of amendments.
§ 475-297 Application for amendments.
§ 475-298 Map amendment applications.
§ 475-299 Minimum size for annexed land.
§ 475-300 Administrative review and referral.
§ 475-301 Response by consulted agencies.
§ 475-303 Hearing before Planning and Zoning Commission; notice.
§ 475-304 Findings and recommendations of Planning and Zoning Commission.
§ 475-305 Town Council consideration.
§ 475-306 Protests to amendment; increase of approval requirement.
§ 475-307 Filing of protests to amendments.
§ 475-308 Application for amendment after rejection.
§ 475-309 Mineral extraction or production.
§ 475-310 Computation of size.
§ 475-313 Injunction, mandamus or abatement.
§ 475-314 Violations and penalties.
§ 475-315 Nonliability of Town.
§ 475-328 Restrictions and operation of food stands, food trucks/trailers, and ice cream trucks.
§ 475-329 Violation and penalties.
§ 475-330 Intent and purpose.
§ 475-335 Removal of abandoned towers, antennas and poles.
§ 475-338 Use of right-of-way.
Unsafe buildings — See Ch. 151.
Building and fire construction standards — See Ch. 175.
Hazardous materials — See Ch. 250.
Master Land Use Plan — See Ch. 275.
Sexually oriented businesses — See Ch. 370.
Subdivision of land — See Ch. 400.


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1. The Ninth Circuit rule is invalid since (1) it makes an indigent defendant (who must prepare his petition under 2255 without assistance of counsel) face "the danger of conviction because he does not know how to establish his innocence" and (2) it requires the sentencing court to screen out supposedly unmeritorious appeals in summary fashion, a procedure rejected in Coppedge v. United States, 369 U.S. 438 . P. 330.
2. Under the circumstances of this case, including the length of time since petitioner was sentenced, the trial judge's failure to advise him of his right to appeal and failure to inquire into the circumstances surrounding petitioner's attempt to make an in forma pauperis motion, no hearing is required and the case is remanded to the District Court, where petitioner should be resentenced so that he may perfect his appeal as prescribed by the applicable rules. Pp. 331-332.
William Ross Wallace, by appointment of the Court, 393 U.S. 974 , argued the cause and filed a brief for petitioner.
Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, and Lawrence G. Wallace.
This action was commenced on February 15, 1966. Petitioner alleged that he was of Mexican descent and that his knowledge of English was limited. He further contended that his retained counsel had fraudulently deprived him of his right to appeal. He asked that his conviction be set aside and that he be resentenced so that he could properly take an appeal. The District Court for the Northern District of California denied petitioner's application and the Ninth Circuit affirmed. 387 F.2d 117 (1967). Both courts relied on a Ninth Circuit rule requiring applicants in petitioner's position to disclose what errors they would raise on appeal and to demonstrate that denial of an appeal had caused prejudice. We granted certiorari to resolve a conflict among the circuits about the propriety of such a requirement. 2 393 U.S. 951 (1968). We reverse.
As this Court has noted before, "[p]resent federal law has made an appeal from a District Court's judgment of conviction in a criminal case what is, in effect, a matter [395 U.S. 327, 330] of right." Coppedge v. United States, 369 U.S. 438, 441 (1962). The Ninth Circuit seems to require an applicant under 28 U.S.C. 2255 to show more than a simple deprivation of this right before relief can be accorded. It also requires him to show some likelihood of success on appeal; if the applicant is unlikely to succeed, the Ninth Circuit would characterize any denial of the right to appeal as a species of harmless error. We cannot subscribe to this approach.
The Government, while not arguing that the courts below properly denied relief on the pleadings, urges us to remand this case for a truncated factual hearing. Drawing upon this Court's recognition in Machibroda v. United States, 368 U.S. 487, 495 (1962), that the hearing requirement of 2255 "does not strip the district courts of all discretion to exercise their common sense," the Government suggests that the District Court be instructed to obtain an affidavit from petitioner's trial attorney explaining why no notice of appeal was filed. This explanation, together with petitioner's allegations, would be used to judge the propriety of a hearing.
This issue was not present in this case when certiorari was granted and we do not think it is present now. For we think it "just under the circumstances," 28 U.S.C. 2106, for us to dispose of petitioner's arguments finally at this stage. Six years have now elapsed since petitioner was sentenced, and we do not see how further delay and further prolonged proceedings would serve the cause of justice. Moreover, it appears from the trial transcript in this case that the trial judge erroneously failed to advise petitioner of his right to appeal. At the time of trial, Fed. Rule Crim. Proc. 37 (a) (2) required the sentencing judge to inform unrepresented defendants of their right to appeal; the clerk upon request was required to file a notice of appeal for the defendant. 3 Counsel's attempt to [395 U.S. 327, 332] obtain leave for petitioner to proceed in forma pauperis should have put the trial judge on notice that petitioner would be unrepresented in the future. Moreover, unless an appeal was contemplated, there would be no reason to make such a motion. As the trial judge should have recognized, petitioner was therefore precisely the kind of defendant who needed the protection afforded by the rule. Had he known that the clerk would file a notice of appeal for him, he could easily have avoided the difficulties he has faced. At the very least, the trial judge should have inquired into the circumstances surrounding the attempt to make the in forma pauperis motion. His failure to do so effectively deprived petitioner of his right to appeal. Since this deprivation appears on the record before us, we see no need for any factual determinations on remand. Cf. United States v. Smith, 387 F.2d 268 (C. A. 6th Cir. 1967).
The judgment is reversed and the case is remanded to the District Court where petitioner should be resentenced so that he may perfect an appeal in the manner prescribed by the applicable rules.
[ Footnote 1 ] Fed. Rule Crim. Proc. 37 (a), now Fed. Rule App. Proc. 4 (b).
[ Footnote 2 ] The Ninth Circuit rule originated in two 1964 decisions, Wilson v. United States, 338 F.2d 54, and Miller v. United States, 339 F.2d 581. Cf. McGarry v. Fogliani, 370 F.2d 42 (C. A. 9th Cir. 1966). The First Circuit has adopted an intermediate position; the defendant is not required to show plain reversible error in his application, but the Government may defeat relief by showing that an appeal would be futile. Desmond v. United States, 333 F.2d 378 (1964). Both petitioner and the Government attempt to find support in the position of the Tenth Circuit. Hannigan v. United States, 341 F.2d 587 (1965). The Fifth, Sixth, Seventh, Eighth, and District of Columbia Circuits do not require any showing about the issues to be raised on appeal. Camp v. United States, 352 F.2d 800 (C. A. 5th Cir. 1965); United States v. Smith, 387 F.2d 268 (C. A. 6th Cir. 1967); Calland v. United States, 323 F.2d 405 (C. A. 7th Cir. 1963); Williams v. United States, 402 F.2d 548 (C. A. 8th Cir. 1968); Dillane v. United States, 121 U.S. App. D.C. 354, 350 F.2d 732 (1965).
This provision has since been transferred to Rule 32 (a) (2). It now applies to defendants going to trial on a plea of not guilty, whether or not they are represented by counsel. The problem of determining whether to give notice to a person represented at trial, but who may not be represented on appeal, will therefore not recur.
I agree with Part I of the Court's opinion, but cannot subscribe to Part II, in which the Court reinstates petitioner's right to appeal without further proceedings below. In taking this course I think the Court has been too insensitive to what, on this record, is due the trial judge, petitioner's trial counsel, and the orderly administration of the criminal process.
In my opinion, this record does not show that petitioner was wrongfully denied an opportunity to appeal. It appears from the record that immediately following petitioner's sentencing his lawyer indicated orally that [395 U.S. 327, 333] petitioner wished to appeal in forma pauperis, and that the judge informed the lawyer that "all motions" had to be made in writing. Thereafter no written notice of appeal was filed within the 10-day limit. Petitioner further alleges that he told his counsel to perfect an appeal and that counsel neglected to do so, but those allegations have never been tested by the adversary process.
The Court undertakes to justify its decision not to require a hearing and findings on this score by characterizing as "error" the sentencing judge's failure "to advise petitioner of his right to appeal," as then supposedly required by Fed. Rule Crim. Proc. 37 (a) (2), and by concluding that it is "just under the circumstances," 28 U.S.C. 2106, to dispose of the case at this level. See ante, at 331-332.
Although I share the Court's concern that petitioner receive promptly all relief which is legally due him, I am unable to accept either this attribution of "error" to the trial judge or this bypassing of established methods for determining the truth of factual allegations. At the time petitioner was sentenced, Rule 37 (a) (2) required that a sentencing judge advise only "a defendant not represented by counsel" of his right to appeal. 1 (Emphasis supplied.) In this instance, petitioner was represented by retained counsel both at trial and at sentencing. The excerpts from the trial transcript upon which the Court relies contain nothing at all to rebut the natural inference, apparently drawn by the sentencing judge, that petitioner's counsel would continue to represent him at least for the purpose of filing a notice of appeal. Indeed, [395 U.S. 327, 334] petitioner's own statement of the facts reveals that this inference was wholly justified, for petitioner asserts that after his sentencing "his counsel advised both him and his wife that he would arrange for their appeals." 2 Thus, even if it is assumed that "the trial judge should have inquired into the circumstances surrounding the attempt to make the in forma pauperis motion," ante, at 332, the judge's omission was surely at most harmless error.
I would therefore remand the case to the District Court, so that it may be determined whether petitioner in fact did instruct his attorney to perfect an appeal and whether the attorney in fact neglected to do so. This course seems to me to be required both in the interest of orderly procedure and in fairness to petitioner's trial attorney.
Furthermore, as suggested by the Government, I would permit the District Court discretion to begin by obtaining an affidavit from petitioner's attorney in response to petitioner's allegations. Who knows whether the attorney may not have in his possession documentary evidence conclusively showing the allegations to be unfounded? Or who knows whether the attorney may not wish to concede the accuracy of the allegations? In either case, the affidavit procedure might obviate the necessity for a full-blown hearing. If the attorney has no documentary evidence, and if his affidavit reveals a factual controversy, then of course a hearing would be required. Such a procedure entirely fits the language of 28 U.S.C. 2255 and this Court's statement in Machibroda v. United States, 368 U.S. 487, 495 (1962), that 2255 "does not strip the district courts of all discretion to exercise their common sense."
[ Footnote 1 ] This provision was subsequently amended to require that the judge so advise all defendants, whether or not represented by counsel. See ante, at 331, n. 3. See also Peoples v. United States, 337 F.2d 91 (1964); Calland v. United States, 323 F.2d 405 (1963); Boruff v. United States, 310 F.2d 918 (1962).

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When can a creditor file a means test motion? A legislative history of Sections 707(b)(6) and 707 (b)(7) | Peter R. Scribner, Esq.
On behalf of Peter R. Scribner, Esq. posted in Notes from BAPCPA on Tuesday, November 17, 2009.
Section 707(b) allows a Chapter 7 bankruptcy case to be dismissed as an abuse. Section 707(b)(2) allows a case to be dismissed if the debtor fails the "means test"; that is, if the debtor's income over the previous six months exceeds the expenses allowed by the IRS collection system, plus other expenses provided by the complicated means test calculation. Section 707(b)(3) allows a case to be dismissed if, under the totality of circumstances, the case is abusive. This usually means the debtor has actual ongoing income that exceeds actual necessary expenses, and that there is no special circumstance, such as unemployment or health issues, that justify a bankruptcy filing.
The Office of the United States Trustee, a division of the United States Justice Department, monitors abusive chapter 7 cases and always has standing to file a 707(b) abuse motion. But what about creditors? Can an aggressive creditor file a motion to dismiss a case, perhaps intending to pressure the debtor to settle with them? Yes, IF the debtor has higher income than the median for the state. However, there is a slight wrinkle in this provision when a debtor is married and files alone.
For a Section 707(b)(2) "Means test" motion, the non-debtor's spouse is counted in calculating whether the debtor is above the state median. If the debtor and non-debtor spouse's combined income is below median, no one (no creditor, no trustee, no US trustee) may file a "Means test" motion. But if the debtor's income, plus the non-debtor spouse's contribution to household expenses, do not exceed the state median, the US Trustee, and only the US Trustee, may bring a Section 707(b)(3) totality of circumstances motion.
These two limitations are located next to each other in the bankruptcy code, as Sections 707(b)(6) and 707(b)(7). But these two provisions, with their seemingly inconsistent results, arrived next to each other through different routes through the legislative history of the 2005 bankruptcy amendments. The issue may not come up often, but if it does, it is helpful for a debtor's attorney to know when a creditor may - or may not - file an abuse motion.
Only the judge or United States trustee (or bankruptcy administrator, if any) may file a motion under section 707(b), if the current monthly income of the debtor, or in a joint case, the debtor and the debtor's spouse, as of the date of the order for relief, when multiplied by 12, is equal to or less than... (B) in the case of a debtor in a household of 2, 3, or 4 individuals, the highest median family income of the applicable State for a family of the same number or fewer individuals..." [Emphasis added].
No judge, United States trustee (or bankruptcy administrator, if any), trustee, or other party in interest may file a motion under paragraph (2) if the current monthly income of the debtor, including a veteran (as that term is defined in section 101 of title 38), and the debtor's spouse combined, as of the date of the order for relief when multiplied by 12, is equal to or less than ... (ii) in the case of a debtor in a household of 2, 3, or 4 individuals, the highest median family income of the applicable State for a family of the same number or fewer individuals..." [Emphasis added].
In 2005, in anticipation of the implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA"), I reviewed BAPCPA and presented a Continuing Legal Education seminar on the statute in Rochester, Buffalo, Syracuse and Corning. Among other things, I reviewed 'Thomas', the online service of the Library of Congress, and downloaded the text of the various bankruptcy statutes that had been introduced in Congress from 1997 through BAPCPA in 2005.
By reviewing changes in these various versions of bankruptcy bills over time, I believe that we can have some understanding as to how BAPCPA §707(b)(6) and §707(b)(7), with their slightly different wording, came about. The 2005 BAPCPA modifications to §707(b) were essentially identical to versions passed by one house or the other of Congress since 2001, and statutory variations in bills from 1999 through 2001 shed light oin how this language was settled on.
The first bankruptcy reform bill, which eventually produced BAPCPA eight years later, was introduced in the Senate October 21, 1997 by Senator Grassley of Iowa, among others. As introduced, Grassley's bill, S. 1301, amended §707(b) by deleting the party in interest limitation (the bill simply struck out "but not at the request or suggestion of a party in interest"). The initial bill did not include any limitation on any party bringing an abuse motion.
After notice and a hearing, the court - (A) on its own motion or on the motion of the United States trustee or any party in interest, shall dismiss a case filed by an individual debtor under this chapter; or (B) with the debtor's consent, convert the case to a case under chapter 13 of this title; if the court finds that the granting of relief would be an inappropriate use of the provisions of this chapter.
H.R. 3151 as passed by the House did not include any limitation on what party may bring a §707(b) motion.
H.R. 3151 was then passed in an extensively modified version by the Senate Sept. 23, 1998. This version changed §707(b) from "the court, on its own motion, or on a motion by the United States Trustee, but not at the request or suggestion of any party in interest" to "the court, on its own motion, or on a motion by the United States Trustee, or at the request or suggestion of any party in interest."
Only the judge, United States trustee, bankruptcy administrator or panel trustee may bring a motion under this section if the debtor and the debtor's spouse combined, as of the date of the order for relief, have current monthly total income equal to or less than the national median household monthly income calculated on a monthly basis for a household of equal size [emphasis added].
The House version of H.R. 3151 did not include any 'means test' provision, but the Senate version of H.R. 3151 included the short means test provision of S. 1301 (see paragraph 12, above).
A new bill, S. 625, was introduced in the Senate March 16, 1999. This version changed §707(b) from "the court, on its own motion, or on a motion by the United States Trustee, but not at the request or suggestion of any party in interest" to "the court, on its own motion, or on a motion by the United States Trustee, panel trustee or at the request or suggestion of any party in interest." This was essentially the language used in all later bills, including the 2005 BAPCPA legislation.
Only the judge, United States trustee, bankruptcy administrator, or panel trustee may bring a motion under this section if the debtor and the debtor's spouse combined, as of the date of the order for relief, have a total current monthly income equal to or less than the national or applicable State median family monthly income calculated on a monthly basis for a family of equal size [emphasis added].
On May 5, 1999, the House passed their own bankruptcy bill, H.R. 833. This bill included an extensive means test provision similar to S. 625, and a §707(b) safe harbor provision identical to S. 625, as set out in paragraph 20 above.
The safe harbor provision of H.R. 833, as passed by the Senate in 2000, was essentially the same language as the BAPCPA §707(b)(6).
(C) in the case of a debtor in a household exceeding 4 individuals, the highest median family income of the applicable State for a family of 4 or fewer individuals last reported by the Bureau of the Census, plus $525 per month for each individual in excess of 4.
On July 17, 2001, the Senate passed their version of H.R. 333, but with the same §707(b)(6) & (7) safe harbor language as S. 420.
A year later, on July 26, 2002, a conference committee of the House and Senate reported a compromise bill, which used the same §707(b)(6) & (7) safe harbor language as the original H.R. 333 as passed by the House.
The House passed H.R. 975 March 19, 2003, using the same §707(b)(6) and (b)(7) language as the House version and the Conference version of the 107th Congress' H.R. 333.
BAPCPA, as S. 256, was finally passed by the Senate March 10, 2005, and included essentially the same safe harbor provisions of §707(b)(6) and (b)(7) as the 2001 conference report.
From the very first bill introduced in 1997, the bankruptcy bills that lead up to BAPCPA all deleted the provision of the pre-BAPCAP Bankruptcy Code that limited to the court and the U.S. Trustee the standing to make, or even suggest, an abuse motion.
Below is a list that shows the chronological development, through various bankruptcy bills, of the language that eventually became §707(b)(6) and §707(b)(7).
As shown on the list above, all these bankruptcy bills, other than the 1998 House bill, included a provision that limited the right of parties other than the Court or the United States Trustee to file any §707(b) abuse motion to cases where the debtor income was above-median. Through 1999, the bills stated that in cases where a married person files individually, the limitation would be if the debtor and the non-filing spouse's combined income was above median. Starting in 2000, all bills calculated the limitation as being the debtor's current monthly income in an individual case.
As described above, a simplified "means test" was introduced in the very first 1997 Senate bankruptcy bill. The extensive means test that we now use, with six month pre-bankruptcy income compared to IRS expenses, was introduced in 1999 with S. 625. In 2001, a separate limitation on means test motions was first introduced. Prior to the 2001 limitation, a means test motion could have been made even if the debtor's income was below median.
I believe it would be correct to say that the means test was debated publically and in Congress far more than any other provision of the bankruptcy bills leading up to the passage of BAPCPA. The original means test proposals, prior to 2001, were not limited to above-median debtors. In theory, a modest income debtor with even more modest expenses might have been caught up in a means test motion.
In other words, §707(b)(6) and §707(b)(7) have their origins in two different aspects of the bankruptcy bills. The predecessor of §707(b)(6) was inserted at the very beginning of the process, to replace the pre-BAPCPA limitation on who can bring any abuse motion. §707(b)(7) was inserted for an entirely different purpose, to shelter below-median income debtors from the application of the means test.
Looking at it from this perspective, the slightly different language between how median income is calculated in §707(b)(6) and §707(b)(7) in a case where a married debtor files individually - only the debtor's CMI is used in §707(b)(6) and the combined debtor-and-spouse CMI is used in §707(b)(7) - is irrelevant: the two provisions are dealing with two separate issues and the fact that they are located next to each other in the statute is little more than a coincidence.
In any case, the limitation of §707(b)(6) was not some provision thrown into BAPCPA at the last minute. The language of §707(b)(6), which limits cases where a creditor can bring an abuse motion to those where the individual debtor's CMI is above median rather than the combined CMI of the debtor and a non-filing spouse, has been the standard language in every bankruptcy bill since 2000. The fact that bankruptcy bills 1997 through 1999 used language that calculated combined household median income, and the bills from 2000 through 2005 used language calculating the limitation as the debtor's individual CMI, shows that Congress must have considered both alternatives and intentionally chose the current language.
The language used in §707(b)(7) first arose in 2001. The House versions of the 2001 bankruptcy bill used the BAPCPA language, stating that the means test only applies if the debtor-and-spouse combined income is above median. The Senate bills in 2001 set the median income calculation at the debtor's individual CMI. It appears that in conference the House version prevailed.
Related Posts: New Means Test Figures: Median Income, Expenses Up in NY, When are Private Student Loans Discharged in Bankruptcy?, Blast from the Past: Elizabeth Warren on BAPCPA, Is a Sallie Mae Career Training Loan dischargeable in bankruptcy under BAPCPA?


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Jessop, Carolyn. Escape (Mormon, poligamy). Photo available. New York. Broadway Books. 2007. Octavo. Hard cover. Reprint. Illustrated. Promotional letter laid in. Fine copy in fine dust jacket (in mylar).
Jessup, Ronald. South East England. Photo available. New York. Praeger Publishers. 1970. Octavo. Hard cover. First American edition. Illustrated. Fine copy in very good (large chip on bottom edge) dust jacket (in mylar).
Jett, Stephen, Willa Cather, Oliver La Farge, and others. Navajo Wildlands. "As Long as the Rivers Shall Run". Photo available. San Francisco. Sierra Club. 1967. 167 pps. Folio. Hardcover. First edition. Illustrated in color and black & white by Richard Kauffman. Important reference work. Fine copy in near fine (very light edge chipping) dust jacket (in mylar).
Jian, Huang, Ph. D. Systematic Studies on Aphalinidae of China (Hymenoptera: Chalcidoidea). Wasps. Contributions of the Biological Control Research Institute Fujian Agricultural University . Special Publication N. 5. Photo available. Chongqing. Chongqing Publishing House. 1994. 353 pps. 4to. Hardcover. First edition. Illustrated. Important reference work. In Chinese, with some English translation. Fine copy in fine dust jacket (in mylar).
Jigglelance, Doctor O. Henry. Flying, Dying & Fornicating. Photo available. Vallejo. A White Lite Publishing. 1989. 4to. Soft cover. First edition. Illustrated. Near fine copy (very light shelf wear).
Jigmei, Ngapo Ngawang. Tibet. Photo available. New York. McGraw-Hill. 1981. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Jimenez, Antonio Nunez. El Archipielago Cubano. Photo available. La Habana. Cuba: La Naturaleza y el Hombre. 2000. Octavo. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
Jingwei, Zhang. The Alpine Plants of China. Photo available. Beijing. Science Press. 1982. 134 pps. 4to. Hardcover. First edition. Illustrated in color and black & white. Fine copy in fine dust jacket (in mylar).
Jobson, Gary. Gary Jobson. Inscribed by the author. An American Sailing Story. Photo available. Chicago. Nomad Press. 2011. 245 pps. Octavo. Hardcover. First edition. Full number line. Illustrated in black, white and color. Important reference work. Inscribed by the author "June 5, 2013 To Sandy: Many years after our time in Toms River I wrote this memoir. It has been quite a ride, on-and-off the water. I hope you enjoy it. Best wishes. Gary". Related photos and note from author laid in. Fine copy in fine dust jacket (in mylar).
Jockle, Clemens. Encyclopedia of Saints. Photo available. Old Saybrook. Konecky & Konecky. 2003. 4to. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Jodidio, Philip. New Forms. Architecture in the 1990s. Photo available. Koln. Taschen. 2001. 4to. Soft cover. First edition. Illustrated in black, white and color. Fine copy.

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Pedestrians are legitimate users of the transportation system and have the legal right to cross roads safely and efficiently – while government planners and engineers have the legal duty to plan, design, and install safe and convenient crossing areas.
Marked crosswalks are delineated by white or yellow painted markings placed on the pavement. Pedestrians often feel that if they use a marked crosswalk when crossing a street, they are in a “safe zone” and therefore are de facto protected against oncoming vehicles. Crosswalks, in reality, are often death traps if located at “uncontrolled” intersections (intersections without traffic signals or stop signs) or at midblock locations. Many of these crosswalks – due to inadequate traffic-control devices, inadequate lighting or other visibility issues due to the roadway, volume and speed of traffic, or unique pedestrian concerns – are highly dangerous to pedestrians.
In California, according to the Department of Motor Vehicle’s website, pedestrian deaths account for approximately 22 percent of all traffic-collision fatality cases. Indeed, the magnitude of unnecessary deaths and injuries at uncontrolled marked crosswalks has driven increased awareness of this issue. As a result, in December 2017 the Federal Highway Administration issued a memorandum outlining acceptable methods of safety features to help increase pedestrian safety, specifically at uncontrolled marked crosswalks.
As lawyers, if we encounter a case that involves an injury or death to a pedestrian by a motor vehicle that occurred in a marked crosswalk at an uncontrolled intersection or at a midblock location, we should always analyze the design and placement of the sidewalk as a potential contributing factor to the crash. However, a public entity is not liable for an injury occurring on its property, except as provided by statute.
To prevail on an injury claim resulting from an allegedly dangerous public crosswalk, there must exist a “dangerous condition of public property” that, due to negligent conduct of the entity’s employee or due to the entity’s failure to warn after having actual constructive notice of the condition, created a reasonably foreseeable risk of the kind of harm that occurred. (Gov. Code, §§ 835, 815; see also CACI 1100.) Moreover, all applicable governmental statutory immunities must be defeated (discussed below).
Although the plaintiff must prove all the elements of CACI 1100 (public property; dangerous condition; negligence and/or notice; causation; harm; foreseeability), this article focuses on the characteristics of a crosswalk that might constitute a “dangerous condition,” and how to get around the governmental immunities.
What is a “dangerous” crosswalk?
Assume your client or his/her family member is severely injured or killed while lawfully crossing in a marked crosswalk. We need to explore whether that crosswalk was “dangerous” and if the design, placement, and/or layout of the crosswalk contributed or caused the harm.
Do a site inspection and watch traffic pass by at various times of the day, including the time of day that your subject collision took place. Examine the volume and the characteristics of the pedestrian population who typically use that crosswalk (e.g., children, adults, handicapped).
For example, if the crosswalk is near a senior center or a hospital, and the pedestrians who typically use that crosswalk are the elderly who often walk slower, additional safety measures should likely be implemented to allow for longer walking speeds (flashing beacons, road markings, etc.). The crosswalk should also allow for additional spacing for the use of wheelchairs or walkers and have appropriate timing and warning indicators to alert oncoming motorists of a potential delay in crossing.
If the pedestrians are typically younger children, and the crosswalk is near a school zone or a church, additional considerations should be considered to account for users perhaps running in the crosswalk, and their smaller stature (i.e., smaller children are harder to see and implicate visibility concerns, discussed below). We should also think about the general placement of the crosswalk in the environment, and the possibility of other crossing choices.
Traffic: Consider, for example, the speed of traffic, volume of traffic, and the number of lanes. If the speed of traffic is high in relation to the surrounding neighborhood, additional safety features should be added near the crosswalk to enhance its safety (for example, adding speed bumps or other traffic control devices to adjust for slow-moving pedestrians). In addition, studies have shown that on multilane roads with traffic volumes above about 12,000 vehicles per day, having a marked crosswalk alone (without other substantial improvements) was associated with a higher pedestrian crash rate (after controlling for other site factors) compared to an unmarked crosswalk. Therefore, traffic volume and the number of lanes in relation to the location of the crosswalk needs to be analyzed. A traffic engineer can be hired to study traffic volume and flow patterns of that particular street.
Lighting: If the crash occurred during the day, analyze how the sun may have affected the driver’s visibility, and whether a traffic control would mitigate the risk of being “blinded” by the sun. If the crash occurred at night, determine whether the lighting is too low/inadequate, absent, or malfunctioning near or at the crosswalk. If the lighting seems “off,” consider whether additional common-sense safety measures could have been used to enhance lighting at the crosswalk to better illuminate pedestrians in or near the crosswalk. Although governments are typically immune for malfunctioning lights, other factors may come into play. A human-factors expert along with the traffic engineer can scientifically analyze lighting issues for you.
Other Visibility Issues: Bus stops increase volume of pedestrians near crosswalks and the large buses can impede visibility of the pedestrians entering the crosswalks. Is there a bus stop near the crosswalk which is hindering the visibility of the pedestrians entering/exiting the crosswalk? Are there parked cars that may be blocking the motorists’ view of pedestrians entering the crosswalk? The design of the adjacent street parking may be contributing to the dangerous condition.
Signage: Are there any signs and/or alerts that a crosswalk is present? Are there other features accompanying the crosswalk?
There are particular features that will weigh against the finding of a dangerous crosswalk. If the crosswalk is controlled by a traffic light or stop sign, for example, the crosswalk is less likely to be found hazardous. Low traffic volume at the crosswalk will similarly likely weigh against the finding of a dangerous condition. The presence of flashing lights and/or a high-intensity activated crosswalk beacon (known as a “HAWK” signal), which is a traffic-control device used to stop road traffic and allow pedestrians to cross, are well-accepted, and often suitable, adequate safety-enhancement features.
Safely marked crosswalks often also utilize other measures to enhance safety, such as curb extensions, raised crossing islands/medians, traffic signals with pedestrian signals, roadway narrowing, enhanced overhead lighting, and speed reducing/traffic calming measures (e.g., speed bumps/humps.) A crosswalk will more likely be deemed unsafe if these additional safety measures are absent.
Regarding markings, signage, and signals, the Federal Manual on Uniform Traffic Control Devices (“MUTCD”) is a document issued by the Federal Highway Administration of the United States Department of Transportation, which specifies the standards by which traffic signs, road surface markings, and signals are designed, installed, and used – crosswalks included. In the United States, all traffic control devices must legally conform to these standards. The manual is used by state and local agencies (as well as private construction firms) to ensure that the traffic control devices they use conform to federal standards. While some state agencies have developed their own set of standards, including their own MUTCDs, the state standards must substantially conform to the federal MUTCD; California is no exception and has its own conforming MUTCD, issued by California Department of Transportation.
Both the California and the Federal MUTCD provide that “crosswalks lines should not be used indiscriminately,” and also require that an engineering study be performed before marked crosswalks are installed at locations away from traffic control signals or stop signs (i.e., at “uncontrolled” locations). However, there are no specific rules (e.g., requirements concerning traffic volume, pedestrian volume, number of lanes, presence or type of median) regarding where marked crosswalks should or should not be placed at uncontrolled locations. It is a judgment call.
The MUTCD suggests various methods to enhance safety at uncontrolled marked crosswalks. These measures (also known as “treatments” in the engineering community) include: (1) the use of various types of crosswalk markings, (2) enhancing the edge of a standard Pedestrian Crossing warning sign with light-emitting diodes that can be activated by pedestrians, (3) adding traffic control devices (e.g., red beacon displays/flashing beacons), (4) adding motorist warning signs (e.g., crossing flags and in-street warning signs) and pavement markings, (5) installing lighting treatments, and/or (6) performing roadway narrowing. The use of median refuge islands and curb extensions are also alternatives which have been shown to improve pedestrian safety.
Hiring a traffic engineer for your case is a wise and necessary investment, as they have the expertise and knowledge to correlate the collision history rate with the other design factors described above in order to deem the crosswalk unsafe. Sometimes, human-factors experts are also useful to tie in visibility issues with pedestrian/motorist patterns, along with the physical aspects of the crosswalk. The most appropriate safety treatment, or combination of safety treatments, will depend on the specific conditions of each site. Your expert can conduct a road safety audit to help identify deficient safety features based on the specific roadway and user characteristics.
Does a government immunity apply?
However, even where the plaintiff can prove that the dangerous condition exists, governments have immunities against injuries occurring on their property. Government Code section 830.6 sets forth the affirmative defense of “design immunity.” (See also CACI 1123 (Affirmative Defense – Design Immunity).) This immunity was established to protect the government and their engineers when the construction is based on approved, reasonable design plans.
The first two elements, if the facts are disputed, are for the jury to determine. The third element – the “reasonableness” element – is always for the court to decide. It is important to note that “reasonableness” does not require the property to be perfectly designed, only that there is “substantial evidence” of reasonableness. A government civil engineer’s opinion, and/or even the mere approval of the plan in and of itself by competent professionals, will likely constitute sufficient evidence of reasonableness. Therefore, simply getting your expert to disagree with the design plans will not create a triable issue of fact, and the government will prevail on this element.
First, ask if the immunity argument is even available. In a crosswalk case, it is necessary to first determine whether the immunity even applies. In written discovery, request all “approved” design plans and all “as built” design plans of the crosswalk (or area) at issue, including all updates and changes after the initial design. A special interrogatory requesting an enumeration of the standards that were used in the design and construction should also be sent. Also, take the depositions of the persons most qualified, and send document requests asking for the same. If there are no design plans (which happened in one of my cases), this defense is not available for the defendant!
Second, if there are design plans, have your expert review them: Once you obtain the design plans, have your “road design engineering” expert analyze these documents to determine if the area in question was built in accordance with the design plan. If the design of the crosswalk does not comport with the approved plan, or the standards were not followed in the design or construction, the immunity does not apply. In addition, as stated above, the MUTCD requires that an engineering study be performed before marked crosswalks are installed at uncontrolled locations. If the engineering study was not performed at all, this evidence can be used to disprove the “reasonableness” of the design plan (since the plan was approved in violation of California law), and the immunity will not apply.
Has the government lost its design immunity?
If there is an approved plan that was complied with, determine whether the government lost its design immunity. (See CACI 1124, “Loss of Design Immunity (Cornette)”.) Even when a plan has been approved and the area built in conformity with the approved design, and even if the entity establishes the three elements of immunity under section 830.6, a plaintiff can avoid design immunity by proving that the “changed-conditions” exception applies. To overcome design immunity and for the exception to apply, the plaintiff must show that: (1) the design became dangerous because of a change in physical conditions; (2) the defendant had actual or constructive notice of the change; and (3) the defendant had a reasonable amount of time to carry out corrective work or did not reasonably attempt to provide adequate warnings of the condition.
Look for factors such as population growth in the surrounding area, in combination with increased use of the crosswalk, change of state standards (e.g., MUTCD standards), increased accident history, and changed conditions of the area. The plaintiff must present triable issues of fact regarding the loss of design immunity to prevail in any motion for summary judgment based on design immunity. Triable issues of material fact also might include the changed circumstances of the area based on the length of time between the time the design was approved and/or built and the date of injury.
Analyze whether there is “causation” of the injury. If the injury was not caused by the design of the crosswalk itself but some other factor – there is no causation element. To assert design immunity, there must be proof that an alleged design defect was responsible for the accident, as opposed to some other cause. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939-940.) The injury-producing feature must have been a part of an approved plan. (Id. at p. 941.) Therefore, for example, if plaintiff is alleging a visibility obstruction or sudden blast of sunlight caused the injury, the City will not have done anything from a design perspective connected to these issues.
Getting past governmental immunity can also be accomplished if there are sight obstructions to drivers as they approach the crosswalk. Courts have held the following sight obstructions constitute dangerous conditions: a sudden blinding light as a driver went over a hill that had been blocking the sun (Erfurt v. California (1983) 141 Cal.App.3d 837); trees and signs, even when not owned by the city (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830); and shadows from a freeway and pillars (Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531). Arguably, bus stops or parking spots adjacent to uncontrolled crosswalks that impede visibility, contributing to the pedestrian’s injury, might also defeat the causation element.
Finally: a dangerous condition of public property does not always involve defective design. If an entity caused a dangerous condition on its property by negligently constructing, installing, or maintaining the property, design immunity does not apply. (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 575). In a case where defective design plays a role alongside other wrongdoing (inadequate maintenance, for example), the case survives immunity so long as the inadequate maintenance was a concurrent cause of injury. (Ibid.) In Mozzetti, a roadway was defectively designed to allow inadequate drainage, but it was also negligently maintained such that it kept clogging. Because negligent maintenance was involved, the city was not immunized from liability for the resulting flooding.
Practice tip: As soon as you receive the defendant’s answer, carefully review the affirmative defenses and send written discovery regarding the evidentiary basis for each of the asserted immunities. Having this information early will help you formulate your own defenses to the asserted immunity and will help you analyze other ways to get around design immunity, if applicable.
For example, blind corners, sight obstructions, blind spots, physical aspects of the roadway such as elevation variations, conditions adjacent, near and/or approaching the intersection which may obscure the view of the drivers, or other unusual conditions that make the crosswalk dangerous, in addition to the lack of traffic control devices/markings, could render the government liable. In Gardner v. City of San Jose, the lack of crosswalk markings, poor illumination, and lack of warning signs became important “factors” in the court’s determination of finding liability against the City of San Jose.
Additionally, crosswalks on roads with higher speed limits, greater amount of pedestrian travel, and prior incidents will support your dangerous condition claim. After establishing a dangerous condition, the plaintiff may introduce evidence that the governmental entity failed to eliminate or mitigate the dangerous condition via traffic signals, controls, or signs, and is therefore liable. Analyzing the physical area of the roadway and the surrounding circumstances, in combination with the failure to provide traffic control devices and markings, may allow your client to get around the immunities set forth in sections 830.4 and 830.8.
Please also remember that there are other potential governmental immunities that may apply, such as the weather immunity set forth in Government Code section 831 (see CACI 1122) and perhaps immunities set forth in Government Code sections 835.4(a) and (b) (see CACI 1111 and CACI 1112).
When analyzing whether we should accept a dangerous crosswalk case, we should look at the logistics of the subject crosswalk and see if something looks amiss. Pull and study the SWITRS report. How many similar collisions are there at that crosswalk? Visit the crosswalk and watch traffic pass by at various times of the day, including the time of day that your subject collision took place.
Look at traffic patterns – volume of cars and relative speeds. Look for buses or parked cars that might be obscuring the visibility of the pedestrians entering the crosswalk. Look at the pedestrians that are using the crosswalk and take note of their characteristics and behavioral patterns, as well as pedestrian volume. Look at the surrounding neighborhood (e.g., is there a school nearby? a hospital?) and the availability of alternate crossing areas. Look for other visibility concerns and possible lighting issues.
Then look at all the signage, lights, street markings, and other traffic control devices and physical features located at the crosswalk. Make a note of what devices and features are present, and where they are located. Ask yourself if something about the crosswalk looks unsafe to you, and whether additional safety measures might have helped prevent the subject injury or death.
Take various photos of the crosswalk at multiple angles, at the appropriate time of day with similar lighting as your subject case, making sure to document any and all signs, devices, markings, etc. Once there is the potential for a dangerous crosswalk, then analyze the situation in the context of the immunities above. Often there is not enough information (e.g., design plans) to fully vet the design immunity defense. However, there might also be other “factors” to overcome the immunity defenses (as discussed above). Provide the traffic collision report, SWITRS report, and the photos to your expert to analyze. He or she can help you decide at the outset whether to take the case; this is highly recommended since these types of cases could be costly and it is better to know early on whether you have a good case before you spend a ton of money on it.
Dangerous uncontrolled marked crosswalks are more prevalent than you probably realize. Take a look around you, and you will see all the potential hazards that await the unsuspecting innocent pedestrian, who will perhaps be your next client. Instead of thinking you only have the driver as a defendant (who often has a minimal policy), perhaps you have a deep-pocket governmental entity which may also be held liable.

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In Re the Matter of: Terry Jo Jokippi, Respondent, vs. Larry E. Miller, Appellant. C7-97-1817, Court of Appeals Unpublished, February 24, 1998.
Miller and the guardian do not question the accuracy of the district court's factual findings, but rather challenge the conclusions of law.
In early 1996, Jokippi was granted temporary permission to remove the child to Wisconsin. Due to several continuances, the evidentiary hearing regarding removal did not commence until nearly one year later. At that hearing, the district court specifically found that Jokippi's move to Wisconsin did not provide increased economic, educational, family, or quality of life benefits to the child and was for the purpose of interfering with Miller's access to and relationship with the minor child. The court also found that Jokippi alienated the child from Miller in numerous ways, such as demonstrating hostility towards Miller and not allowing items from Miller to come into the home. The court concluded, however, that it would cause greater conflict and tension to the child if Jokippi's motion to remove were denied.
The district court made several findings that support removal, namely, the child's significant familial relationships were those that he enjoys with Jokippi's younger son and husband, under Jokippi's care the child enjoyed a reasonably stable home environment, and the parties' conflict endangered the child's emotional health and well-being.
Broad discretion is granted to the trial court to determine what is in a child's best interest in the area of visitation. Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984); Anderson v. Archer, 510 N.W.2d 1, 5 (Minn. App. 1993). "[I]n all matters involving court-established family relationships of children, * * * our paramount commitment [is] to the best interests of the children." Olson v. Olson, 534 N.W.2d 547, 549 (Minn. 1995). "The `best interests' of the child is a factual issue." Kennedy v. Kennedy, 376 N.W.2d 702, 708 (Minn. App. 1985) (Wozniak, J. dissenting) (citing Willmore v. Willmore, 273 Minn. 537, 539, 544, 143 N.W.2d 630, 632-34 (1966)). Unless clearly erroneous, a trial court finding concerning the best interests of the child must be upheld, but we need not defer to the lower court on questions of law. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993).
The custodial parent shall not move the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, when the noncustodial parent has been given visitation rights by the decree. If the purpose of the move is to interfere with visitation rights given to the noncustodial parent by the decree, the court shall not permit the child's residence to be moved to another state.
Minn. Stat. § 518.175, subd. 3 (1996).
Miller and the guardian ad litem argue that the district court erred as a matter of law because it did not follow the mandatory language of section 518.175, subdivision 3. They point to the specific findings regarding Jokippi's interference and alienation and argue that the district court had only one option under the statute: not to grant Jokippi permission to remove the child to Wisconsin.
The district court, however, is not constrained by such a literal interpretation. The paramount principle of all "court-established family relationships" is the best interests standard. Olson, 534 N.W.2d at 549. The case most frequently cited by Miller, Auge v. Auge, 334 N.W.2d 393 (Minn. 1983), supports using a best interest standard. In Auge, the supreme court concluded that the focus of a court's review of a custodial parent's decision to move out of state "should remain, where the legislature has placed it, on the best interests of the child." Id. at 400.
While the district court in this case did make findings that Jokippi acted in a manner which interfered with Miller's visitation rights, the ultimate decision to allow Jokippi's move to Wisconsin was based on the best interests of the child. The district court concluded that to force Jokippi to return from Wisconsin would only increase an already hostile environment that would, in turn, further negatively influence the child. The district court also found that: Jokippi provided a stable living environment; the child had significant relationships with his stepfather and stepbrother; and the child's time in Wisconsin was going well. Caselaw supports the district court's reliance on factors such as permanence, stability, and continuity. See Silbaugh v. Silbaugh, 543 N.W.2d 639, 642 (Minn. 1996) (affirming district court's consideration of stability, permanence, and closure in custody matters).
We hold that the district court did not err as a matter of law when it applied the best interests standard to this case, nor was it in error when it concluded that removal served the child's best interests. We must add, however, that we consider today's decision to be a victory for no one. The parties' nearly seven years of litigation with hundreds of motions reveals only that considerations of what would be best for their child have long since been forgotten in the parties' desire to hurt each other, regardless the cost.
The district court's decision not to award either party attorney fees was not an abuse of discretion and is affirmed. The motion to recaption the case is denied. The motion to strike Jokippi's brief because it contains material outside the record is denied. Millers' motion to strike Jokippi's December 18, 1997, response to Miller's and guardian ad litem's reply briefs is granted because the rules of appellate procedure do not allow Jokippi to submit a responsive brief to a reply brief. Minn. R. Civ. App. P. 128.02, subds. 3, 4.
I respectfully dissent and would reverse. The district court's factual findings and conclusions, in light of controlling statutory and case law, do not support the ruling that respondent is entitled to change the minor child's residence from Minnesota to Wisconsin.
The district court's painstakingly detailed, precise and thoughtful findings and conclusions in its Order Amending Judgment and Decree dated June 13, 1997, delineate a history of respondent's persistent interference with appellant's visitation with the parties' minor child to the clear detriment of the child's well-being.
It is essential that Plaintiff come to acknowledge that it is in the child's best interest to have a genuine relationship with his father and the record is replete with evidence that Plaintiff is willfully resistant to that idea.
The following November, respondent notified appellant that her husband had moved to Wisconsin to work there and that she wanted permission to change the child's residence. Before receiving a response to her request, she signed an agreement to purchase a home in Wisconsin. A few days later appellant notified her that he objected to the residence change. By that time, respondent had already listed her house in Minneapolis for sale. One month after receiving appellant's refusal to consent to the residence change, respondent moved the district court for approval of the change.
For various reasons the hearing on the motion was continued. Appellant and the guardian ad litem requested that there be no move before the hearing. Respondent, however, informed the court that she had nowhere to live after January 29, 1996 and the court granted her temporary permission to move.
After a hearing on February 14, 1996, the court entered its order on March 1, 1996 ruling that appellant had made a prima facie showing that, by changing the child's residence, respondent intended to interfere with visitation.
The district court heard evidence on various dates between February 19, 1997 and April 11, 1997 and then, on June 13, 1997, issued its Order Amending Judgment and Decree. In that order, the district court cited numerous examples of respondent's obstruction of appellant's visitation rights, including respondent's antagonism toward his visitation suggestions; inflexibility about compromising visitation issues; proclivity for expressing her anger toward appellant and making derogatory statements about appellant in the presence of the child, and for actively involving the child in the parties' conflicts; interference with telephone visitation; pattern of parental alienation in which she actively undermined the child's relationship appellant; and her lack of cooperation with the guardian ad litem and the child's psychologist.
The Court's warning in the May 25, 1995 Order, as well as Plaintiff's course of conduct over the years leads this court to conclude that Plaintiff's move to Wisconsin was not mere coincidence, but a deliberate attempt to circumvent the access provisions this Court has carefully put into place over time, to subvert the process of Defendant further establishing and maintaining a relationship with the minor child, and to obstruct the ability of this Court, the guardian ad litem, and other professionals who have been intimately involved with this case to monitor the parties and assist the minor child in dealing with the destructive effects of his parent's ongoing conflict.
Despite the findings of a past pattern of intentional interference with visitation and the conclusion that the change of the child's residence was specifically and intentionally designed to interfere further with visitation, to impair the relationship between appellant and his child, and to circumvent court directives, the district court granted respondent's motion, saying that a denial would exacerbate the parties' animosity and cause the child greater problems.
When removal is permitted, the court shall make such modifications of visitation as are reasonable and necessary to maintain a good relationship between the noncustodial parent and child * * * provided that such adjustments are not against the best interests of the child. If the purpose of the move is to interfere with visitation rights, removal shall not be allowed.
The majority suggests that the clear directive of Minn. Stat. § 518.175, subd. 3 and of Auge need not be taken literally in view of the paramount "best interests of the child" standard.
The majority holds that the district court's ultimate decision was based on the child's best interests, and that the district court made some findings favorable to respondent and relied on factors such as permanence, stability and continuity, all of which are properly relied upon under case law.
No evidence was adduced at trial with respect to the desire for maintaining continuity. Certainly it is beneficial for children to experience continuity, stability and security in their lives; however, given the level of Plaintiff's interference with Michael's relationship with his father, the Court finds that maintaining continuity is secondary to ensuring that this child is allowed to experience the joy and security of maintaining a relationship with his father.
The district court's findings amply support its conclusions, but neither the findings nor the conclusions reasonably support the ultimate ruling. It is my opinion that the ultimate ruling is clearly erroneous.
As a final note, I respect the district court's sincere effort to protect a child caught in the crossfire of his parents' animosity by making an equitable ruling, but the ruling comports with neither the district court's own findings and conclusions nor with the law. As such it should not be permitted to stand.


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A commercial barrister with considerable experience across a wide range of chambers work. He has successfully represented clients in a number of landmark cases in the Court of Appeal and House of Lords.
Recommended in the directories for Commercial Dispute Resolution and Professional Negligence.
Christopher is recommended in the directories for Commercial Dispute Resolution as a leading practitioner in this area. He is able to draw upon experience across a wide range of business areas, including the banking and financial, technological and property sectors.
He has substantial experience of business acquisition disputes (such as warranty claims arising in share purchase disputes) as well as of internal business disputes (shareholder/director disputes, unfair prejudice petitions, partnership and joint venture disputes). He is also regularly instructed in general commercial contractual disputes, asset recovery proceedings and procurement disputes. He is able to draw on his experience of trust and property law in so far as may be relevant.
He has considerable experience of cases requiring urgent injunctive relief (including freezing injunctions, search orders, springboard injunctions and third-party disclosure orders). He has often been instructed in claims with an international or multi-jurisdictional aspect and is experienced in collaborating with lawyers in foreign jurisdictions throughout Europe, the Middle East, Asia, the United States and the Caribbean.
Christopher has a particular interest in the new legal challenges arising from the impact of technological developments in the modern world.
Christopher has also been instructed on numerous commercial employment disputes in High Court litigation covering team moves, the enforcement of restrictive covenants and the protection and recovery of trade secrets and commercially sensitive confidential information, data and databases. He successfully represented the claimants in Beckett Management Investment Group v Hall  EWCA Civ. 613,  1 ICR 1539,  IRLR 793 (the leading modern authority on the enforcement of employee restrictive covenants) and in Flogas Britain v Calor Gas Ltd  EWHC 3060 (Ch),  FSR 34. (the first English High Court case to consider infringement of a EU database right). He is also experienced in dealing with High Court employment claims relating to executive pay, pensions and director’s duties.
Christopher is also experienced in providing advice on jurisdictional disputes and conflict of law as they arise in commercial disputes but he has also been instructed to provide specialist advice and representation on unusual and complex jurisdictional matters such as Goldstone v Goldstone  EWCA Civ. 39  1 FLR 1926,  1 FCR 324 (jurisdiction of the High Court to join and make freezing orders against off-shore corporate entities in complex trust structures to financial relief proceedings) and Ackermann v Synergy Capital  EWHC 887 (Ch) (replacement of insolvent off-shore corporate trustees of English investment trust of Scottish LLP established for management buy-out of leading UK insurer).
Listed in the directories as a leading practitioner in the field of Professional Negligence. His focus in this field has been largely on claims arising from or related to property transactions (including mortgage lending) or the acquisition of businesses. He has experience in dealing with claims against a variety of professionals including solicitors, surveyors, architects and accountants. He is also noted for his particular expertise in dealing with claims against trustees and fiduciaries in such cases as Daniel v Stanley Tees  4 WLR 115 and in dealing with issues of limitation in such cases as Barnett v Creggy  Ch. 273 and Boycott v Perrins Guy Williams  EWHC 2969.
With many years’ experience in complex property and commercial law matters, Christopher is able to provide specialist legal advice on some of the more difficult legal issues which can encounter in property damage matters, including property insurance disptues. He provided, by way of example, specific legal advice on the various claims arising in connection with the Buncefield litigation.
Christopher successful represented Carnival Plc in the landmark case Milner v Carnival PLC  EWCA Civ 389,  3 All ER 701,  Lloyds Rep. 374,  PIQR Q3 (the assessment of damages for a ruined holiday) and as a junior barrister he dealt with numerous claims under the Package Holiday Regulations. He has advised on contractual issues between travel operators and on issues arising under specific international conventions impacting on travel claims.
As a junior barrister Christopher’s practice was initially focused on a wide variety of property disputes including landlord and tenant disputes (both commercial and residential). He continues to accept instructions on such matters. In light of his success in Stack v Dowden  UKHL 17,  2 AC 432 he is often asked to deal with matters which involve an element of trust or fiduciary obligation within the practice areas set mentioned above. But he also continues to be heavily involved in cases between co-owners of property, unmarried couples and proprietary estoppel claims. He regards this as an important part of his practice as it enables him to assist people from diverse backgrounds who are faced with what are often difficult and life-changing events. Please contact the clerks for further information on this part of Christopher’s practice.
Christopher regularly acts for parties involved in ADR such as arbitration or mediation. He embraced mediation at a very earlier stage and qualified as a CEDR mediator as long ago as 2000. He has since been involved in numerous mediations acting for one of the parties or as mediator.
He accepts appointments as a mediator or as an arbitrator.
Stack v Dowden  UKHL 17,  2 AC 432,  2 WLR 831,  2 All ER 929,  1 FLR 1858. Leading case on constructive and resulting trusts in the context of co-habitees.
Barnett v Creggy  EWCA Civ,  2 WLR 1054,  PNLR 4,  Ch 273. Issue of limitation in the context of a claim against a solicitor for breach of fiduciary duty.
Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion SA  EWCA Civ 1308,  HLR 4 :  1 P & CR 5 :  1 EGLR 89. Established that aggravated damages are not recoverable by a corporation and considers the assessment of ‘hypothetical negotiation’ damages.
Flogas Britain v Calor Gas Ltd  EWHC 3060 (Ch),  FSR 34. First English High Court case to consider infringement of a EU database right.
Goldstone v Goldstone  EWCA Civ. 39  1 FLR 1926,  1 FCR 324. Jurisdiction of the High Court to join and make freezing orders against off-shore corporate entities in complex trust structures to financial relief proceedings.
Milner v Carnival PLC  EWCA Civ 389,  3 All ER 701,  Lloyds Rep. 374,  PIQR Q3. Landmark decision of the Court of Appeal on the assessment of damages for a ruined holiday.
Beckett Management Investment Group v Hall  EWCA Civ. 613,  1 ICR 1539,  IRLR 793. Leading modern authority on the enforcement of employee restrictive covenants.
Edlington Property v Fenner  EWCA Civ 403, Times 12 May  1 All ER 98, (2006) L&TR 2, (2006) 5 EG 274, (2006) 5 EG 274, (2005) NPC 119, (2006) Times, Nov 4 (2006) CA. Leading modern authority concerning equitable set-off in the landlord and tenant context.
Cole v Davis Gilbert  EWCA Civ 398,  All ER (D) 20 March, (2007) Times, April 6. Occupiers’ liability and village greens. Reported on the front page of the Daily Mail under the heading “An Outbreak of Common Sense”.
Geoffrey Boycott v Perrins Guy Williams  EWHC 2969,  PNLR 25. Limitation and application of s.14A of the Limitation Act 1980 to professional negligence “omissions case” against solicitors.

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On behalf of Weisberg Law posted in Uncategorized on Thursday, May 23, 2013.
Knoster v. Ford Motor Company 2006 WL 2561234 (C.A.3 (N.J.)) is case where the Plaintiff filed claims under both the New Jersey Product Liability Act ("PLA") and the New Jersey Consumer Fraud Act. Specifically under the PLA, the plaintiff filed a failure to warn and a design-defect claim. The District Court dismissed the consumer fraud claim and entered judgment in favor of the Defendant based on the jury's verdict. The Plaintiff appealed on a variety of claims.
On behalf of Weisberg Law posted in Uncategorized on Friday, March 15, 2013.
In MARX v. GENERAL REVENUE CORP., 668 F. 3d 1174 (2013), the United States Supreme Court affirmed a decision that was upheld by the Tenth Circuit. The District Court had ordered the losing plaintiff, Marx (who had defaulted on her student loans) to pay the defendant's partial court and attorneys fees. In this case Marx had claimed that her creditor, General Revenue Corporation (GRC) was harassing her via phone calls and letters to her employer, and falsely claiming to garnish half of her wages. The decision, which was a matter of statutory interpretation, will help to provide other circuits with guidance, however, it has sparked an interesting policy concern.
On behalf of Weisberg Law posted in Uncategorized on Tuesday, September 18, 2012.
Giannini v. Rosenberg, No. 11-3542 (June 8, 2012 D.N.J.) is a case which examines the process of bringing a malpractice suit while an ethics charge is still pending. This case is being presented to show the various levels of complaints which are available to Plaintiffs as well as how the systems work in harmony when discussing Constitutional claims.
On behalf of Weisberg Law posted in Uncategorized on Friday, April 27, 2012.
On behalf of Weisberg Law posted in Uncategorized on Sunday, January 29, 2012.
Uberoi v. Stark & Stark (S & S) is not groundbreaking for the law it presents, but rather for the idea it reinforces in New Jersey legal malpractice claims. Often times, clients may believe they have suffered as a result of the malpractice of attorneys. However, no liability will accompany this feeling of helplessness unless the court is convinced that the attorney's mistake proximately caused damage to the client. As a side note, the case also showed that arbitration will not preclude a successive action if the burden is more strenuous at arbitration.
On behalf of Weisberg Law posted in Uncategorized on Thursday, January 19, 2012.
Sabella v. Estate of Milides provides a very key point for those interested in legal malpractice claims. Mainly, if one feels they have been wronged by opposing counsel, they need not worry about the lack of an attorney-client relationship, and may instead file a claim alleging abuse of process and wrongful use of civil proceedings.
On behalf of Weisberg Law posted in Uncategorized on Monday, November 14, 2011.
On behalf of Weisberg Law posted in Uncategorized on Friday, November 11, 2011.
On behalf of Weisberg Law posted in Uncategorized on Friday, November 4, 2011.
In Kituskie v. Corbman, it is shown that in order to prevail in a legal malpractice claim arising out of a civil matter, the plaintiff must prove by a preponderance of the evidence that he or she would have prevailed in the underlying matter 682 A.2d 378 (1996).
On behalf of Weisberg Law posted in Legal Malpractice on Sunday, October 30, 2011.
In Veneri v. Pappano, there were two take away points, one for attorneys who work for the government and the other for clients who feel they have been wronged by their attorneys. 622 A. 2d 977 (Pa. Superior 1993).

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