Bar Journal - September 1, 1999
By: Attorney Marcus Hurn
This Annual Survey has no theme, except, perhaps, the endless variety of the life of the law: criminal investigation by school teachers, putting dollar values on potentially infinite loss, providing for victims of lawyers gone bad, perhaps opening the courts to injured bystanders of the intended use of non-defective tobacco (or firearms), figuring out how to "sign" a magnetic signal, and making a signed settlement stick.
The police are increasingly involved in school matters, often called in as the school authorities learn of possible criminal activity in the course of their own investigations. The real world of cooperation confronts a divided legal regime- school personnel have much wider authority for search and interrogation in the performance of their duties than do police officers. Once their efforts overlap with a police investigation, it becomes critical to determine when the stricter standards for police activity apply. In his article School Personnel as Third Party Agents of the Police (p. 8), Andrew Schuman details some of the recent authority in New Hampshire and Massachusetts in an effort to clarify the basic test.
The difficulties of valuing a life in any meaningful way have led many states over many years to constrain in various ways awards for wrongful death. New Hampshire is not among them. In Marcotte v. Timberlane/Hampstead School District, analyzed by Edward White and Dennis Withee starting on page 14, our Supreme Court has definitively held that loss of the pleasure of life (hedonic damages) has been compensible under our wrongful death statute from its earliest days. The implications for discovery and proof will likely take a long time to work out.
What, if anything, to do for the uninsured victims of attorney misconduct has been a hot topic in the legislature and bar this past year. Those who want a straightforward Summary of the Client Protection Fund may turn to Nicole Coppes-Gathy's article on page 20.
Betty Pham's piece on second-hand smoke damages (p. 26) makes a strong argument that the current theory of products liability followed in New Hampshire is flawed, and that argument has much broader implications that for tobacco litigation. The usual products liability analysis is rooted in a contractual model. Was the manufacturer's item defective? What did the user know? But what if the hazard is to non-consenting third parties?
Most attorney's think they know what a signature is- the name or mark of the writer manually applied to paper in ink. That has never been so, at least not for many purposes. A much more accurate definition is that in UCC 1-201 (39): "any symbol executed or adopted by a party with present intention to authenticate a writing." In the middle ages, when a seal wasn't handy, William the Conqueror bit wax wafers with his presumably distinctive teeth. Telegraph code numbers were acceptable as signatures over a hundred years ago. The PIN number is less vulnerable to theft than the medieval seal, but is has much the same decisiveness in use. The legal issue has always been (1) whether a given symbol was made or adopted by the relevant party, and (2) whether their intent was to authenticate that with which it was associated. Over the centuries questions of cost, convenience, and evidentiary reliability have provided various media, and now they have again. Electronic commerce must be binding, which means reliable authentication of individual assent is necessary. The current technology and New Hampshire's legislation are analyzed by Steven Schwarz and Gary Hodgson in Signing Your John Hancock in the 21st Century (p. 32).
Of course, getting an authentic signature may not be your problem. It wasn't in Huguelet v. Allstate, a 1997 case that has disturbed more than one insurance defense lawyer. The plaintiff had knowingly cashed a check from the insuror, a check bearing the legend "FINAL SETTLEMENT OF ANY AND ALL CLAIMS... ." Yet our Supreme Court vacated the trial court's summary judgment for the defendant. In a careful analysis beginning on page 36, Brad Close shows how this case fits perfectly well with established law, including the accord and satisfaction provisions of the UCC, and how the holding is no threat to simple settlements accomplished by check.
The back of the book has two perennial favorites. Mark Puffer continues his analysis of Justice Souter's decisions (p. 40) noting particularly State Sovereign Immunity, Civil Rights, and Search and Seizure issues. Charles DeGrandpre continues LEX LOCI, beginning, on page 44 with New Hampshire's own prohibition on single-party telephone taping, continuing through several substantive fields, and ending with a wry analysis of a case applying the law of restrictive covenants to sale of pizza by the slice.
Attorney Marcus Hurn, a Professor at Franklin Pierce Law Center, Concord, New Hampshire.
Neil Maloney, Class of 1999, Franklin Pierce Law Center, Concord, New Hampshire.
Heather Schulze, Class of 1999, Franklin Pierce Law Center, Concord, New Hampshire.