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The Right To Not Remain Silent

From The Other Side Of The Bench

By David J. Seidemann, Esq.
Yes, it’s been a few weeks since I have had the time to write, and no, I was not kidnapped. But on that subject, the reason I have not had time to write these last few weeks was a divorce trial I was involved with. I represented a husband who was seeking a divorce from his wife of 18 years. He had accumulated a vast fortune prior to his marriage to this woman, and despite executing a prenuptial agreement, she was seeking a portion of his holdings. Months ago, when the wife first challenged the validity of the prenuptial agreement, the judge ruled in our favor and upheld the agreement. The wife claimed that she did not understand English when she signed the agreement 18 years ago.
Not lost on the judge was the fact that the wife earned a master’s degree in English years prior to signing the prenuptial and taught English in high school here and abroad. The judge found her claims to be incredible and denied her motion to set aside the prenup.
The issue to be tried, the matter that kept me out of print for a few weeks, was ownership of the house that the couple lived in while they were married. The wife argued that her salary contributed to the purchase of the house, while we maintained and ultimately proved that the entire purchase price of the home was paid from separate funds belonging to the husband, which he inherited from his father and aunt.
Just hours before Shabbos last week, the case concluded much to my client’s delight. The wife did not share the same enthusiasm with the outcome. She accused me, her ex-husband, and her attorney of somehow fixing the case. She also went to the police station and attempted to file a report (I don’t know if the police actually wrote up a report) that if anything happens to her, that her husband, his attorney, and her attorney should be considered by the police as prime suspects. So if my articles disappear for weeks on end, at least you now know why. It is cases like this one that make my head spin.
Speaking of circles, there was a bar in California called the Circle Inn. It was located across the street from another bar called Happy Jack’s Saloon. On August 9, 1977, Darrell Soldano was shot in the Happy Jack’s parking lot by one Rudolph Villanueva. A patron of Happy Jack’s witnessed the attack, ran into the Circle Inn, and asked to use the phone to call the police. The employee of Circle Inn did not allow the patron to use the phone. Soldano eventually died as a result of the shooting, and medical records confirmed that had help arrived immediately, he would have survived.
Soldano’s son sued the Circle Inn, claiming the bar operators had an affirmative duty to allow the “Good Samaritan” to use their phone to summon aid. The bar people argued that they didn’t owe a legal duty to Soldano or to the patron, and moved to have the case dismissed prior to trial.
The court issued an interesting decision in denying the Circle Inn’s motion and allowing the case to proceed to trial. In brief, the court ruled that while one is under no duty to act to save another (unless a special relationship exists between the two parties or unless the party caused the harm to the other) one cannot prevent, either by commission or omission, another individual from rendering assistance.
If you wish to remain silent as peril befalls others, such is your choice. But to stand in the way of others who wish to be vocal and wish to ameliorate the pain, suffering, and intolerable conditions of others is not something we as a civilized society can or will tolerate.
Tuesday’s election results are an affirmation of that belief. This administration has been asleep on almost every issue near and dear to us. When they have spoken, they have spoken up for the wrong side. They have remained silent when words were needed; they have spoken out when they should have remained quiet.
They have blamed the unrest in Israel on the proposed building of apartments in Jerusalem and remained silent, failing to state the obvious, that driving vans into crowds of people—innocent men, women, and children—is the cause and effect of unrest and more unrest.
It is indeed hopeless. The president is in over his head and is fundamentally misguided. Maybe he should remain quiet. As for the rest of us, we began to speak out on Tuesday.
David Seidemann is a partner with the law firm of Seidemann and Mermelstein and serves as a professor of business law at Touro College. He can be reached at 718-692-1013 or

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Posted by on November 6, 2014. Filed under In This Week's Edition. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.