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Legally Speaking with Bob Mionske – Choice of law

  • By VeloNews.com
  • Published Oct. 16, 2008
  • Updated Oct. 17, 2008 at 9:56 AM EDT

By Bob Mionske

One of the important skills lawyers-in-training (a.k.a. “law students”) learn in law school is the ability to argue either side of a case. That can be tough for the average non-lawyer to wrap their mind around, but it’s an essential skill, because a lawyer has to be able to identify the legal issues at stake in any case, and to understand the arguments both for and against a particular legal point.

In any case, there will always be at least two differing opinions presented to the court on what the law requires in that case, and the court will decide which side is correct on the law. And that’s okay with the court, as long as the legal arguments presented to the court are “colorable” ? that is, as long as the arguments pass the “straight face test.” In fact, a lawyer can even present two different legal theories to the court, and those legal theories don’t even need to be consistent with each other, as long as there is a colorable argument to be made in support of each theory.

Courts allow this, because the goal of the court is to find the correct law applicable to the facts of the case, and presenting the court with all of the legal arguments, even if they’re not consistent with each other, helps the court to decide which legal argument is applicable to the case before it.

One thing that’s essential in all of this, however, is that the lawyer must get the underlying law in support of the legal argument right. Case law must be relevant, or “on point,” and it must be current– if a particular decision has been overturned, the lawyer must know that, and cannot rely on the overturned case to support the lawyer’s legal argument. Similarly, the lawyer must know which statutes are applicable to the case at hand.

Which brings us to today’s letter. In the October 6 print edition of Legally Speaking, a reader asked whether a ranger in Shenandoah National Park was right to order him to ride single file. Well, that seemed like a pretty simple question to answer. We checked both Virginia state law and the Park regulations, and finding nothing that prohibited riding two abreast–in fact, Virginia law explicitly allows cyclists to ride two abreast — so we duly concluded that the ranger was, in fact, wrong on the law, and that cyclists are allowed to ride two abreast in Shenandoah National Park.

Of course, Legally Speaking readers, being a sharp bunch, spotted my error right away.

One of those readers, T.V., from Southern Cycling Operations, wrote with this observation

Since the rider was in a National Park, state laws do not necessarily apply. 36CFR4.30 provides the restrictions for bicyclists on roads in National Parks. 4.30(d)(3) prohibits “Operating a bicycle abreast of another bicycle except where authorized by the superintendent.” The park official was correct in informing the cyclists that they could not ride two abreast.

We have encountered similar crackdowns in the Smoky Mountain National Park even when there is no automobile traffic. Being a National Park, the federal statutes take precedence.
This is a classic example of a point I‘ve made in the past, both in Legally Speaking and in Bicycling & the Law: Cyclists must be familiar with all of the applicable laws where they ride. This means that in addition to the state vehicle code, they must be aware of any local ordinances that are in effect, as well as any applicable regulations if they are riding in an area administered by a government agency– say, for example, a park.

In this case, we did check the Shenandoah National Park regulations, but made the error of not checking the National Park Service regulations. And as T.V. and several other readers pointed out, the federal regulations are applicable to cyclists riding in Shenandoah and other National Parks. These regulations specify that state traffic law is generally applicable within the National Parks, but go on to specify certain exceptions to state law, including the requirement that cyclists must ride single file within all National Parks unless the superintendent of a particular National Park specifically authorizes cyclists to ride two abreast. Because the superintendent of Shenandoah National Park has not authorized two abreast riding within the Park, the National Park Service regulation against two abreast riding is in effect in Shenandoah National Park.

I began today’s column by taking note of one of the more important lessons law students learn. Although it’s not as commonly used as it once was, law students are also taught the use of certain Latin phrases to concisely convey complex legal principles. And although it’s not a phrase used in the law, one Latin phrase in particular does seem applicable here ? “mea culpa.”
Bob

(Research and drafting provided by Rick Bernardi, J.D.)


I’d like to thank everybody who has contacted me to request my appearance at their event. I will be speaking as extensively on “Bicycling & the Law” this year as my practice will allow, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com (and if you would like to contact me with a question or comment not related to my speaking tour, please drop me a line at mionskelaw@hotmail.com). I’m looking forward to meeting as many of my readers as possible this year.
 


Now read the fine print:

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.
If you have a cycling-related legal question please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

Important notice:
The information provided in the “Legally speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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