#nonspeculation

[transgenderer]

i was thinking about EA, and how disparate a "movement" (to the extent it even is that) it is, and how one might imagine an oncoming schism between speculative/longtermist and shorttermist/global health/poverty branches of EA, but (as reggie recently mentioned) there isn't a lot to *do* or *say* in nonspeculative EA. except try to convert people, i guess. maybe some admin work. its not interesting, its not fun, its...workmanlike.

[ailtrahq]

Tomiwabold Olajide Shiba Inu has seen 4.48 trillion SHIB in transaction volume over last 24 hours Cover image via www.freepik.com Disclaimer: The opinions expressed by our writers are their own and do not represent the views of U.Today. The financial and market information provided on U.Today is intended for informational purposes only. U.Today is not liable for any financial losses incurred while trading cryptocurrencies. Conduct your own research by contacting financial experts before making any investment decisions. We believe that all content is accurate as of the date of publication, but certain offers mentioned may no longer be available. Canine-themed cryptocurrency Shiba Inu is sustaining a strong transaction volume as the market continues its sell-off.The total crypto market capitalization has slipped nearly 1% to $1.07 trillion as the market enters its second day of selling. Shiba Inu, like the majority of crypto assets, is sustaining losses as profit-taking ensues.Shiba Inu has lost the $0.000007 level as a result of the bears' onslaught, reaching lows of $0.00000673 on Oct. 8. At the time of writing, SHIB was down 0.88% in the last 24 hours to $0.00000688.Despite the price drop seen for SHIB, on-chain data portends an interesting indication for its network.According to IntoTheBlock data, Shiba Inu has seen 4.48 trillion SHIB in transaction volume over the last 24 hours. The Transactions Volume indicator estimates the aggregate volume of transactions recorded on-chain in crypto terms.Transaction volume can also indicate both trading and nonspeculative activity. Like trading activity on exchanges, transaction volume can be helpful for spotting reversals and breakouts.Shiba Inu saw a massive transaction volume spike ahead of the Oct. 8 sell-off as IntoTheBlock data revealed a transaction volume surge from 1.76 trillion SHIB on Oct. 7 to a staggering 4.69 trillion SHIB on Oct. 8. This increase might signal both panic from holders selling as well as large investors buying amid the uncertainty.Shiba Inu sustained this trend, seeing a strong transaction volume of 4.48 trillion SHIB on Oct. 9. While uncertainty remains on the market, where SHIB will trend next remains an open question.In most cases, strong transaction volume may indicate a price trend reversal. If this is the case, Shiba Inu may be experiencing bottoming or capitulation. However, bulls may need to consolidate to gain strength before making another move. About the author Tomiwabold Olajide Tomiwabold is a cryptocurrency analyst and an experienced technical analyst. He pays close attention to cryptocurrency research, conducting comprehensive price analysis and exchanging predictions of estimated market trends. Tomiwabold earned his degree at the University of Lagos.

[thewollfgang]

I've got a load of theories, curtesy of a long and slow shift at work, but this one rly ate at my brain and demanded to be shared😅 The rest I'll keep to myself, totaly understand you not wanting to speculate👍🏻And thank you for the anonimity choice, I appreciate that🌻 PS. I rly enjoy your writing and blog, it inspired me to venture into fic writing myself, so thank you for sharing your lovely work! -🐝

I totally understand! I've been cooking and cleaning all day which leaves my brain PLENTY of time to spin out scenes. I'm like brain can you Not right now?? Everyone's cool takes on things makes it hard for me to stick to my principle of nonspeculation! 🤣

But I'm excited for the new season (and heart broken I won't be able to watch it with all yall).

And you are too sweet, thank you for your kind words. ❤️🐝 And hell yes for more fic writers, baby!! Welcome to the fold!

[tachyonpub]

Nick Mamatas’ weird and wild THE PEOPLE’S REPUBLIC OF EVERYTHING highlights the work of a refreshingly versatile storyteller

PUBLISHERS WEEKLY praises Nick Mamatas’ forthcoming collection THE PEOPLE’S REPUBLIC OF EVERYTHING.

The 15 stories in Mamatas’s strong collection show impressive imaginative range, cutting across the boundaries of fantasy and science fiction and veering into territory that defies genre pigeonholing. In “Walking with a Ghost,” H.P. Lovecraft is resurrected as an AI and suitably horrified at being (like a character in his fiction) a consciousness trapped in an unnatural form. “Arbeitskraft” follows a Marxist organizer in a steampunk 19th-century England whose efforts to rally a partly mechanized working class are repeatedly undermined by capitalist mendacity.

<snip>

Mamatas (I Am Providence) writes in a witty, sassy style that invigorates all of his narratives, from the social satire “Under My Roof,” about a family that declares its household a sovereign nation armed with nuclear capabilities, to “The Phylactery,” a poignant nonspeculative tale about familial and cultural identity. This collection highlights the work of a refreshingly versatile storyteller.

Ian White at STARBURST reviews the book.

From an AI ghost of H. P. Lovecraft forged from the real-life author’s many correspondences to a Communist revolutionary who discovers the awful secret of the too-hard-grafting Steam-Workers, from the quiet revolution bubbling beneath the streets of THE PEOPLE’S REPUBLIC OF EVERYTHING to a new baby under the dubious protection of a Greek charm, and from the perils of social networking and a reality-twisting hitman to a father and son bonding over their homemade nuclear device, Nick Mamatas’ collection of (often very) short stories is a weird and wild descent through the imagination that hits its targets more than it misses. And even better than the stories themselves are Mamatas’ story notes, fascinating biographical insights into how each episode was created and their often-convoluted route to publication.

For LIT REACTOR, Gabino Iglesias includes the collection among Summer and Beyond: Upcoming Books That Should Be On Your Radar.

Mamatas is such a great novelist that it's easy to forget he also writes superb short stories. This collection is a testament to his short form chops, and a powerful one at that (it packs a decade's worth of the author's work under one cover). I'm reading this thing now and can assure you it will be on many end-of-year lists. Get on it. 

THE GROTTO podcast interviews Nick Mamatas.

This week, BQ and Larry enter the extended Nick Mamatas universe to learn about horror novels, manga, writing term papers for profit and much more. Join them as the author of the upcoming short story collection THE PEOPLE’S REPUBLIC OF EVERYTHING shares his unique and compelling tales and talks about how he manages to produce a new book every year. Mamatas also authored the San Francisco zombie novel The Last Weekend, the Lovecraftian murder mystery I Am Providence, and the forthcoming Hexen Sabbath.

For more info on THE PEOPLE’S REPUBLIC OF EVERYTHING, visit the Tachyon page.

Cover by Elizabeth Story

[joshuajacksonlyblog]

Debunking Bitcoin Myths: "It’s Only for Criminals"

A series of op eds by Kyle Torpey addressing some of the oft-repeated arguments against Bitcoin

Bitcoin’s core value proposition is that it is an uncontrolled, apolitical money. To some people, this means Bitcoin is only useful to people who want to get around various regulations imposed on the world’s financial systems and society more generally.

And in a way, these Bitcoin critics have a point. Bitcoin can be quite useful for criminals, much like physical cash. However, the permissionless nature of Bitcoin also enables other valuable use cases of this new technology.

Bitcoin is simply a tool. And that tool can be used by both good and bad people.

Non-Criminals in the Developed World

In the developed world, bitcoin has mostly been used for price speculation. People simply want to bet on the future potential of this new digital asset. That’s not a crime.

In addition to outright speculation on bitcoin and altcoins, there are those who already view bitcoin as a credible store of value due to its difficult-to-corrupt monetary policy.

Having said that, there are also some nonspeculative use cases for bitcoin that have gained traction in places like the United States and Western Europe.

If someone wants to protect their financial privacy online, bitcoin is often seen as the best available option. Although privacy-conscious altcoins, such as Monero and Zcash, have increased in popularity, bitcoin is still generally preferred in this niche due to its own privacy improvements (Samourai Wallet and Wasabi Wallet come to mind) and various network effects.

Seeking privacy does not necessarily mean someone is doing anything wrong. Some people are simply becoming more conscious about the amount of personal data they hand over to third parties, especially in light of Facebook’s ongoing privacy controversies.

There are also a variety of other, admittedly niche, Bitcoin-related activities that can be found in the developed world — such as saving money on Amazon purchases via Purse.io and timestamping.

Additionally, it should be noted that “criminal activity” is a rather subjective term. While some bitcoin users may technically be criminals, much of this activity may be seen as morally acceptable by the vast majority of society. Does anyone really care if someone buys a small amount of marijuana on a darknet market?

Furthermore, what’s illegal in one country may be legal in another.

Non-Criminals in the Developing World

Bitcoin has long been touted as having the ability to “bank the unbanked” around the world. While some of this narrative is likely overblown, at least for now, it’s true that Bitcoin can be a solution in the developing world for holding digital value (especially in countries dealing with high levels of inflation) and gaining access to the internet economy.

Issues around identity and reputation make it difficult or uneconomical for banks to provide services in some markets, so Bitcoin can be helpful in filling in the cracks found in the global financial system.

This access to the global economy is also much more difficult for local tyrants to control when it’s enabled by Bitcoin. For example, families leaving Venezuela are able to more easily hold onto their savings by placing it into a Bitcoin private key rather than something physical like cash or gold.

Those who don’t believe the developing world will want to hold an asset as volatile as bitcoin should look at an app like Abra, which allows users to peg the value of their bitcoin to basically any real-world asset.

The developing world also accounts for the other side of the aforementioned Purse.io. Much of the Amazon credit liquidity that powers the site purportedly comes from Amazon Mechanical Turk workers in the developing world.

The key attribute that these use cases in the developed and developing worlds share is that they rely on the existence of a digital bear ecash like bitcoin. Much like the development of the internet itself, the permissionless nature of Bitcoin has the potential to unlock large amounts of value for the world.

This is a guest post by Kyle Torpey. Opinions expressed are his own and do not necessarily reflect those of Bitcoin Magazine or BTC Inc.

This article originally appeared on Bitcoin Magazine.

from Cryptocracken Tumblr http://bit.ly/2XSNtkj via IFTTT

[ericfruits]

Too Late To Sue

The Iowa Supreme Court reversed a court appeals decision and granted summary judgment to the defendant law firm in a legal malpractice case

A client appealed the district court’s grant of summary judgment in favor of her attorney and the attorney’s law firm in her legal negligence action. The client argued the court erred in finding the statute of limitations barred her action. She also contended the court erred in declining to apply the discovery rule, the continuous-representation rule, or the doctrine of fraudulent concealment.

We transferred the case to the court of appeals, which reversed the judgment of the district court. The attorney and his firm applied for further review, which we granted. On further review, we hold no genuine issue of material fact exists as to when the cause of action accrued and the statute of limitations bars the client’s action because the cause of action accrued more than five years before she filed suit. We also hold the client may not use the discovery rule, the continuous-representation rule, or the doctrine of fraudulent concealment to circumvent the limitations period. Accordingly, we vacate the decision of the court of appeals and affirm the judgment of the district court.

The alleged malpractice was advice to the client to pay estate bills from exempt funds (life insurance and 401k payments). 

we find Skadburg sustained actual, nonspeculative injury when she paid the creditors with the exempt funds on Gately’s alleged advice in 2008. Therefore, her cause of action accrued in 2008 when she made those payments. Because Skadburg made these payments more than five years before she commenced this action on August 19, 2015, section 614.1(4) bars her action unless a legal doctrine tolls the limitations period or estops Gately from raising the statute of limitations as an affirmative defense.

Skadburg argues three exceptions to the strict commencement of the limitations period. These exceptions are the discovery rule, the continuous-representation rule, and the doctrine of fraudulent concealment. Although Gately has the burden of establishing the statute-of-limitations defense, Skadburg, as the party attempting to avoid the limitations period, has the burden of demonstrating any exception.

Communications between lawyer and client showed client knowledge

Viewing the record in the light most favorable to Skadburg, the latest date she had actual or imputed knowledge of the possible connection between Gately’s advice and the damages caused by that advice, i.e., the payment of the estate’s debts from exempt funds was March 26, 2010. Accordingly, we find there is no genuine issue of material fact that by March 26, 2010, Skadburg had the duty to investigate the possible connection between Gately’s bad legal advice and her damages once she knew of such a possibility. At that time, the statute of limitations began to run under the discovery rule. She filed her action more than five years after March 26, 2010.

The court rejects the continuous representation rule where the client knows of the alleged malpractice and as to fraudulent concealment

We conclude as a matter of law Skadburg failed to prove by a clear and convincing preponderance of the evidence elements (2) and (4) of fraudulent concealment because Skadburg knew or was on inquiry notice about the deficiencies in Gately’s advice at the time she sent her communications. Thus, her reliance upon the alleged concealment was unreasonable. Accordingly, no genuine issue of fact exists as to whether Gately fraudulently concealed Skadburg’s cause of action for legal negligence, and Gately is entitled to judgment.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/05/the-iowa-supreme-court-reversed-a-court-appeals-decision-and-granted-summary-judgment-to-the-defendant-law-firm-in-a-legal-ma.html

http://lawprofessors.typepad.com/legal_profession/2018/05/the-iowa-supreme-court-reversed-a-court-appeals-decision-and-granted-summary-judgment-to-the-defendant-law-firm-in-a-legal-ma.html

[marymosley]

This Case is Controversial: Competitor Standing Insufficient for IPR Challenge

by Dennis Crouch

AVX Corp. v. Presidio Components, Inc. (Fed. Cir. 2019)

In this case, the Federal Circuit dismissed AVX’s appeal — holding that the patent challenger lacked standing to appeal after losing on the merits in the Inter Partes Review (IPR).

AVX (its subsidiary ATC) and Presidio are competitors in the electronic components market, including sales of capacitors — the subject of Presidio’s patent here.  See U.S. Patent No. 6,661,639.  These companies have repeatedly battled in court over capacitor patent rights — albeit different patents. In one case, Presidio won a $3.3 million judgment and permanent injunction against ATC/AVX for its 545L capacitor; Later, Presidio sued again on ATC/AVX’s redesigned 545L capacitor (550 series) — that lawsuit is still pending.  Despite their ongoing competition, AVX apparently has no concrete plans to make a product covered by the patent.

The case here formally began with an inter partes review (IPR) proceeding before the Patent Office’s Patent Trial & Appeal Board (PTAB). The PTAB instituted review and found some claims unpatentably obvious, while upholding the validity of the remaining claims.

The patent challenger AVX appealed – as is its statutory right.

A party dissatisfied with the final written decision of the Patent Trial and Appeal Board under section 318(a) may appeal the decision pursuant to sections 141 through 144. Any party to the inter partes review shall have the right to be a party to the appeal.

35 U.S.C. § 319.

Rather than deciding the case, the Federal Circuit has dismissed AVX’s appeal for lack of standing and lack of appellate jurisdiction — holding that the U.S. Constitution prevents the case from being heard on appeal.

Article III of the U.S. Constitution creates the Judicial Branch and authorizes the Supreme Supreme (and its inferiors) to to hear “cases” and “controversies.”  Article III, Section 2, Clause 1.  The Supreme Court has read the clause as barring the courts from rendering advisory opinions about the law.  Rather:

For a party to have standing, it must show (1) an “injury in fact,” (2) “a causal connection between the injury and the conduct complained of,” and (3) a likelihood that “the injury will be redressed by a favorable decision.”

Quoting Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  If a party lacks standing, the Courts also lack jurisdiction to hear the case.

Agency to Appellate Court: Article III limitations do not directly apply to IPR proceedings themselves because the PTAB is an Article I administrative adjudicator rather than an Article III court.  Thus, the PTAB does not consider whether the patent challenger has been “injured” by the patent.  Article III standing does kick-in once appealed, and the appellant will need to show an actual controversy, including injury-in-fact between the parties.

On appeal AVX argued for “competitor standing” to challenge government actions.  However, the Federal Circuit refused to follow non-patent cases and instead ruled that that AVX lacks any “nonspeculative stake in cancelling” the claims. “[T]he rationale for finding standing in those cases does not carry over to support standing in the present context, where AVX has no present or nonspeculative interest in engaging in conduct even arguably covered by the patent claims at issue.”

Here, there is a good argument that the Federal Circuit failed to properly consider on-point Supreme Court precedent in cases such as Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970). In Data Processing, the Supreme Court held that data processing service providers had standing to challenge a governmental action allowing new sellers into the market. The basis for standing was the potential lost profits due to increased competition. It seems to me that AVX has alleged enough to show that PTO’s action on the patent similarly shifts the competitive marketplace. The Federal Circuit, however disagreed with my analysis:

The government action is the upholding of specific patent claims, which do not address prices or introduce new competitors, but rather give exclusivity rights over precisely defined product features. That sort of feature-specific exclusivity right does not, by the operation of ordinary economic forces, naturally harm a firm just because it is a competitor in the same market as the beneficiary of the government action (the patentee).

One way to read the Federal Circuit’s analysis here is as an implicit statement that the more recent case of  Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) created a more stringent test and implicitly overruled Data Processing. 

Still, I think that AVX could make a strong case on petition for certiorari.

This Case is Controversial: Competitor Standing Insufficient for IPR Challenge published first on https://immigrationlawyerto.tumblr.com/

[cryptswahili]

Debunking Bitcoin Myths: "It’s Only for Criminals"

A series of op eds by Kyle Torpey addressing some of the oft-repeated arguments against Bitcoin

Bitcoin’s core value proposition is that it is an uncontrolled, apolitical money. To some people, this means Bitcoin is only useful to people who want to get around various regulations imposed on the world’s financial systems and society more generally.

And in a way, these Bitcoin critics have a point. Bitcoin can be quite useful for criminals, much like physical cash. However, the permissionless nature of Bitcoin also enables other valuable use cases of this new technology.

Bitcoin is simply a tool. And that tool can be used by both good and bad people.

Non-Criminals in the Developed World

In the developed world, bitcoin has mostly been used for price speculation. People simply want to bet on the future potential of this new digital asset. That’s not a crime.

In addition to outright speculation on bitcoin and altcoins, there are those who already view bitcoin as a credible store of value due to its difficult-to-corrupt monetary policy.

Having said that, there are also some nonspeculative use cases for bitcoin that have gained traction in places like the United States and Western Europe.

If someone wants to protect their financial privacy online, bitcoin is often seen as the best available option. Although privacy-conscious altcoins, such as Monero and Zcash, have increased in popularity, bitcoin is still generally preferred in this niche due to its own privacy improvements (Samourai Wallet and Wasabi Wallet come to mind) and various network effects.

Seeking privacy does not necessarily mean someone is doing anything wrong. Some people are simply becoming more conscious about the amount of personal data they hand over to third parties, especially in light of Facebook’s ongoing privacy controversies.

There are also a variety of other, admittedly niche, Bitcoin-related activities that can be found in the developed world — such as saving money on Amazon purchases via Purse.io and timestamping.

Additionally, it should be noted that “criminal activity” is a rather subjective term. While some bitcoin users may technically be criminals, much of this activity may be seen as morally acceptable by the vast majority of society. Does anyone really care if someone buys a small amount of marijuana on a darknet market?

Furthermore, what’s illegal in one country may be legal in another.

Non-Criminals in the Developing World

Bitcoin has long been touted as having the ability to “bank the unbanked” around the world. While some of this narrative is likely overblown, at least for now, it’s true that Bitcoin can be a solution in the developing world for holding digital value (especially in countries dealing with high levels of inflation) and gaining access to the internet economy.

Issues around identity and reputation make it difficult or uneconomical for banks to provide services in some markets, so Bitcoin can be helpful in filling in the cracks found in the global financial system.

This access to the global economy is also much more difficult for local tyrants to control when it’s enabled by Bitcoin. For example, families leaving Venezuela are able to more easily hold onto their savings by placing it into a Bitcoin private key rather than something physical like cash or gold.

Those who don’t believe the developing world will want to hold an asset as volatile as bitcoin should look at an app like Abra, which allows users to peg the value of their bitcoin to basically any real-world asset.

The developing world also accounts for the other side of the aforementioned Purse.io. Much of the Amazon credit liquidity that powers the site purportedly comes from Amazon Mechanical Turk workers in the developing world.

The key attribute that these use cases in the developed and developing worlds share is that they rely on the existence of a digital bear ecash like bitcoin. Much like the development of the internet itself, the permissionless nature of Bitcoin has the potential to unlock large amounts of value for the world.

This is a guest post by Kyle Torpey. Opinions expressed are his own and do not necessarily reflect those of Bitcoin Magazine or BTC Inc.

This article originally appeared on Bitcoin Magazine.

[Telegram Channel | Original Article ]

[cryptobrief]

A series of op eds by Kyle Torpey addressing some of the oft-repeated arguments against Bitcoin

Bitcoin’s core value proposition is that it is an uncontrolled, apolitical money. To some people, this means Bitcoin is only useful to people who want to get around various regulations imposed on the world’s financial systems and society more generally.

And in a way, these Bitcoin critics have a point. Bitcoin can be quite useful for criminals, much like physical cash. However, the permissionless nature of Bitcoin also enables other valuable use cases of this new technology.

Bitcoin is simply a tool. And that tool can be used by both good and bad people.

Non-Criminals in the Developed World

In the developed world, bitcoin has mostly been used for price speculation. People simply want to bet on the future potential of this new digital asset. That’s not a crime.

In addition to outright speculation on bitcoin and altcoins, there are those who already view bitcoin as a credible store of value due to its difficult-to-corrupt monetary policy.

Having said that, there are also some nonspeculative use cases for bitcoin that have gained traction in places like the United States and Western Europe.

If someone wants to protect their financial privacy online, bitcoin is often seen as the best available option. Although privacy-conscious altcoins, such as Monero and Zcash, have increased in popularity, bitcoin is still generally preferred in this niche due to its own privacy improvements (Samourai Wallet and Wasabi Wallet come to mind) and various network effects.

Seeking privacy does not necessarily mean someone is doing anything wrong. Some people are simply becoming more conscious about the amount of personal data they hand over to third parties, especially in light of Facebook’s ongoing privacy controversies.

There are also a variety of other, admittedly niche, Bitcoin-related activities that can be found in the developed world — such as saving money on Amazon purchases via Purse.io and timestamping.

Additionally, it should be noted that “criminal activity” is a rather subjective term. While some bitcoin users may technically be criminals, much of this activity may be seen as morally acceptable by the vast majority of society. Does anyone really care if someone buys a small amount of marijuana on a darknet market?

Furthermore, what’s illegal in one country may be legal in another.

Non-Criminals in the Developing World

Bitcoin has long been touted as having the ability to “bank the unbanked” around the world. While some of this narrative is likely overblown, at least for now, it’s true that Bitcoin can be a solution in the developing world for holding digital value (especially in countries dealing with high levels of inflation) and gaining access to the internet economy.

Issues around identity and reputation make it difficult or uneconomical for banks to provide services in some markets, so Bitcoin can be helpful in filling in the cracks found in the global financial system.

This access to the global economy is also much more difficult for local tyrants to control when it’s enabled by Bitcoin. For example, families leaving Venezuela are able to more easily hold onto their savings by placing it into a Bitcoin private key rather than something physical like cash or gold.

Those who don’t believe the developing world will want to hold an asset as volatile as bitcoin should look at an app like Abra, which allows users to peg the value of their bitcoin to basically any real-world asset.

The developing world also accounts for the other side of the aforementioned Purse.io. Much of the Amazon credit liquidity that powers the site purportedly comes from Amazon Mechanical Turk workers in the developing world.

The key attribute that these use cases in the developed and developing worlds share is that they rely on the existence of a digital bear ecash like bitcoin. Much like the development of the internet itself, the permissionless nature of Bitcoin has the potential to unlock large amounts of value for the world.

This is a guest post by Kyle Torpey. Opinions expressed are his own and do not necessarily reflect those of Bitcoin Magazine or BTC Inc.

This article originally appeared on Bitcoin Magazine.

[albstone94]

No Legal Malpractice in this Child Custody-Support Case

Legal malpractice in child custody / child support settings is notoriously difficult to prove. To begin, there is often a privity problem.  If that issue is solved, then the speculation question of “what would the judge have done if…” comes up.  It seems that this was the shortcoming in Chaudhuri v Kilmer 2018 NY Slip Op 00964 [158 AD3d 1276]  February 9, 2018 Appellate Division, Fourth Department.  The question of how a judge would have ruled if the attorney had presented this particular piece of evidence or that argument rarely works out in plaintiff’s favor.

“We likewise affirm the order in appeal No. 1. In order to recover damages in a legal malpractice action, a plaintiff must establish that the attorney “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, that this failure was the proximate cause of actual damages to plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” (Hufstader v Friedman & Molinsek, P.C., 150 AD3d 1489, 1489 [3d Dept 2017] [internal quotation marks omitted]). In moving for summary judgment dismissing the complaint in such an action, a defendant must “present evidence in admissible form establishing that plaintiff is unable to prove at least one of [those] elements” (id. at 1490 [internal quotation marks omitted]; see New Kayak Pool Corp. v Kavinoky Cook LLP, 125 AD3d 1346, 1348 [4th Dept 2015]). Here, defendant met her initial burden on the motion by establishing that plaintiff is unable to prove proximate cause and damages, and plaintiff “failed to submit nonspeculative evidence in support of” those elements in opposition to defendant’s motion (New Kayak Pool Corp., 125 AD3d at 1348 [internal quotation marks omitted]; see Hufstader, 150 AD3d at 1490-1491; Barbieri v Fishoff, 98 AD3d 703, 704-705 [2d Dept 2012]). “

No Legal Malpractice in this Child Custody-Support Case

[netmyname-blog]

Evey Munjal NJ

New Post has been published on https://nerret.com/netmyname/evey-munjal/evey-munjal-nj/

Evey Munjal NJ

Evey Munjal NJ Top Web Results.

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[ericfruits]

Bad Advice Established Malpractice

An attorney's erroneous advice that a client could receive retroactive child support if she waited to establish the father's paternity formed the basis of a legal malpractice action.

The attorney had persisted in the bad advice even after an associate expressed the contrary view to the client. 

The Vermont Supreme Court reversed a trial court and concluded that the plaintiff established both causation and damages from the advice. 

After negotiations over support with the father broke down

Given the father’s attorney’s stance, defendant finally researched the law governing child support arrears to confirm her position. At this point, defendant discovered that she had provided incorrect advice to plaintiff regarding retroactive child support. Instead, in a letter to plaintiff acknowledging her error, defendant explained that no definitive law authorized arrears back to a child’s birth and the date of retroactivity was generally at the trial court’s discretion. In practice, moreover, “courts use the date of filing as opposed to the date of birth.” After receiving this letter, plaintiff told her mother’s friend, “This is devastating news . . . . I can hardly see straight [sic] I’m so angry and upset.”

Subsequently, in a letter to the father’s attorney, defendant acknowledged that her research revealed that she had been mistaken about the date of retroactivity. In the same letter, defendant also wrote: “Without a doubt, had the rules on retroactivity of support been more clear, [plaintiff] would have filed a parentage action as soon as [her daughter] was born.”

When the client sued 

the [lower] court determined that plaintiff failed to prove the negligent representation was a “cause-in-fact” of plaintiff’s injury and that the evidence was“equivocal” as to whether plaintiff would have decided to file immediately had she been aware of the risk. It also found insufficient evidence for nonspeculative monetary damages.

The court on causation

Our case law demonstrates that the court’s factual findings easily establish, by a preponderance of the evidence, that defendant’s negligent advice was the cause-in-fact of plaintiff’s injury...

Defendant’s arguments to the contrary are based on an alternative theory of causation and are not persuasive. She suggests that plaintiff would have delayed filing even if she had been given the correct advice. For example, defendant speculates that the father would have become belligerent if the parentage action had been filed immediately and claims that, because defendant’s advice avoided the possibility of a contentious custody battle, plaintiff would have delayed filing. This argument is not supported by the findings, which indicate that, when plaintiff communicated her pregnancy to the father, he expressed his desire to avoid interactions with both plaintiff and their child. The only indication of contentious behavior was the father’s tangential statement that litigation could turn his mother into a “mad dog”—a statement he made after the parentage action was filed and child custody had been settled. These findings show indifference, rather than bellicosity. Similarly, the trial court’s conclusion that plaintiff’s primary goal was custody of her child is not supported by the findings; at most, the findings demonstrate equal goals of custody and child support. Finally, defendant claims, and the court found, that her letter to the father’s attorney reflected a negotiating strategy, “not an admission directly establishing that [defendant] would have deviated from her advice to delay litigation.” This may have been defendant’s hidden intent, but the language of the letter plainly states that plaintiff would have filed had she been given correct advice. And this conclusion is sufficiently supported by the other factual findings described above.

And damages

Despite this clear causal link between defendant’s negligence and the damages suffered, the trial court relied on two faulty assumptions when it found that the alleged damages were speculative. First, the court stated that plaintiff submitted no evidence to support an award of $1875 per month from the date of her child’s birth; that is, the evidence did not establish that the monthly payment for the first fifteen months would have been the same child support amount that the father and plaintiff stipulated to after negotiations between their attorneys. Instead, the court noted that the father submitted two financial affidavits that resulted in two different child support calculations under Vermont’s child support guidelines. One of the affidavits considered the father’s family gift income, while the other did not. Either with the gift income or without the income, the father’s child support obligation calculated from the affidavits would have been less than $1875 per month. Because these amounts were lower than the stipulated amount and because the father could have contested the inclusion of gift income, the court concluded that the father’s income could not be determined in the absence of the stipulation and that, as a result, any award was speculative.

The court remanded for a calculation of damages.

Justice Carroll dissented

the trial court’s findings and the record as a whole support the conclusion that plaintiff failed to demonstrate that “but for” defendant’s negligence, she would have filed her parentage complaint sooner. The trial court’s application of a standard more deferential to plaintiff does not change, but supports, this result.

(Mike Frisch)

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