I was reading an article by Professor Bainbridge and he raises some points regarding Katrina’s effects on the legal system in Lousiana.
Among the points he makes:
Thousands of lawyers in New Orleans and other places have lost their files, computers (and possibly their clients as well). What happens to clients who filed important documents (wills, trusts, etc.) with these attorneys?
Files in appellate courts and supreme courts are ruined as well. These files are usually kept on the lower floors of courthouses.
Evidence in thousands of criminal cases are likely destroyed as well. What happes with these cases? Will they all walk free if the case hinged on evidence that was destroyed as a result of Katrina?
State bar and disciplenary offices are underwater as well. As he says about hopefuls who took the bar exam in July:
It seems that the legal system in Lousiana is going to be a mess for a while. How does the state sort this out while (attempting to) preserve everyone’s legal rights?
It could be a problem. I have some familiarity with a similar problem faced by Chicago and Cook County in 1871. For example, all of the county title records were lost.
One hopes that New Orleans will be in a better situation than 1871 Chicago. In today’s world, competent people back up their data and store a copy offsite. My law office does. (Although we don’t routinely scan/digitise all documents in our files that we obtain from outside sources, any document that we’ve generated in recent years is stored electronically in at least two places.) Wills are generally kept in a special vault.)
I believe that most local govermental entities (including court clerks) do the same, at least to some degree. Copies, if they exist, avoid some of the problems that you identify. Also, the Chicago Fire was less forseeable than flooding in New Orleans. One hopes that record storage practices there took this into account.
After the Fire, the Illinois legislature enacted some statutes to alleviate some of the problems caused by destroyed records. In some cases, proof (evidence) requirements were eased. For title records, it’s my understanding that a private title company had some copies of records, and these were allowed as evidence of title.
I agree that if criminal evidence was lost, prosecutors may have a problem. As for wills, even if original, signed wills were destroyed, it’s likely that the lawyer will have a digital copy. If the testator is still alive and competent, it’s a simple matter to call the client in and have the will resigned. In cases where the client is dead, and probate is already underway, there are likely to be numerous photcopies of the signed will in several places (lawyer’s case file, court file, in the hands of heirs/estate claimants, etc.), and Louisiana could make any changes in the law necessary to allow these to stand in for originals.
Seems like some assumptions are being made that the paper files and computers weren’t moved before the levee broke.
What was the time frame between the initial warnings of “your city will be underwater” and “your city is underwater”? Surely someone had a mind to move this stuff?
Granted, I guess alot of that time between the warnings and the damage was spent making sure people were safe…but I wouldn’t be surprised if a good amount of data did get shipped out of town with the people.
Zev, in the area of criminal cases you’re absolutely right, and it is going to be a nightmare for the criminal justice system to work through. This story from the Times-Picayune talks about the problems:
That time frame is at most a couple of days. A few days before, the margin of error for the hurricane path was hundreds of miles. I don’t think you can expect all the cities bordering the Gulf of Mexico to move their files in that case. Even Tulane University thought classes would be cancelled for only a few days in a post made August 27th.. There’s just no way that amount of information can be moved in a day or two. The most they can probably do is not store it in the basement of a flood prone city. :eek:
Last week I sent a piss-off-and-die letter to a outfit in NO, and followed up with a complaint to one my of province’s regulatory agencies. I had intended to run a motion for dismissal next week, but I’m putting it on hold so that I can not be accused of taking advantage of the situation in NO.
An email is now circulating among many lawyers, purporting to be from a lawyer formerly based in NOLA. He notes that graded essays were due back from bar examiners this week and hopes that many will be late (i.e. preserved by the graders). Otherwise, all those budding lawyers may have to take the bar exam again (ouch).
Evidence in many criminal cases is undoubtedly lost, and many witnesses will probably be unavailable and/or unlocatable. Defendants’ speedy-trial statute time will keep running, I presume, even after a natural disaster, so many suspects arrested in the weeks before Katrina hit will have to be released for want of prosecution.
The Fifth Circuit U.S. Court of Appeals is based NOLA and is its operations are suspended for the moment; many of the judges have decamped to Houston. All civil deadlines have been pushed back to Sept. 15, subject to further extension.
I guess the email I mentioned is similar to what Prof. Bainbridge posted, although that website seems to be malfunctioning… the text blurred into itself after the first three or four paragraphs, when I just went back to look at it.