There was an excellent column by Animal Law pioneer Bruce Wagman in the latest issue of the ABA's Animal Law Committee newsletter.  The column details three common misconceptions that attorneys unfamiliar with Animal Law concepts often bring to cases involving animals.  Bruce points out that attorneys often suffer from "legal reverse speciesism" -- the misconception that non-human animals can be treated just like humans in court, for example by naming your client's dog as a plaintiff.  At the other extreme, he notes that attorneys will often overlook the special features of animals, and treat them like other forms of property in court.  Finally, Bruce notes that attorneys are often unfamiliar with the depth of the Animal Law field's body of work, and overlook important developments in case law, statutes, and regulations that may affect their cases.

Bruce notes that he is not seeking to discourage attorneys from taking on animal cases, but rather trying to caution attorneys to make sure that they have the appropriate tools to take on Animal Law cases: "Certainly the animal law field needs more good women and men doing the legal work on behalf of animals—the sentiment is that there is a large amount of change needed and that it will not come without continued work in the courts and in the houses of the legislature. So newcomers with an interest in and a willingness to learn are not only welcome, they are vital to the growth of the field. The ideas put forth in this article are not meant to keep new lawyers from entering the animal law ranks, or taking on cases in some of the more challenging areas—but only to note that it is important to move slowly and carefully, to review treatises and case law, and to seek out the input and advice of those already well-versed in the area, in order to ensure the best representation for clients, and the best chance at a positive outcome."

Bruce has a ton of experience in these cases, and knows where he is coming from.  I found the column very well-written, and would encourage anyone considering becoming involved in a legal case involving an animal (whether as a party or as an attorney) to read it.

Domestic cats can be mysterious, elusive, and even predatorial.  Many people think of them as "tiny tigers" or "little lions," and believe that they are all "wild at heart."  Perhaps this is why so many people fall prey to the mistaken belief that domestic cats are "classified by law as wild animals" and that the laws protecting domestic animals do not apply to them.  This idea is demonstrably not true.

Some point to the fact that dogs are defined by statute as "personal property" (A.R.S. section 1-215(30)) as support for this position.  Cats are not included within this definition, these people argue, so therefore cats are classified as wild animals.  Livestock also are not included within this definition, though, and they clearly are not wild animals.  Like domestic cats, livestock are considered to be personal property, notwithstanding the statutory definition.

Others argue that, because cats are not required to be licensed or vaccinated against rabies, they must be classified as wildlife.  The fact that dogs must be vaccinated and licensed has little to do with their classification as domestic animals, and more with the historical role of the "dog catcher."  In the earlier days of American life, dogs often were allowed to roam free during the day, and were brought in at night.  Up until the early 20th century, it was not uncommon to visit a small community and find dogs running loose.  As dog predation of livestock became a problem, laws were passed requiring licensing of dogs and prohibiting them from running loose.  These laws served the goals of restraining dogs and providing accountability for damage caused by them. Cats were not included within these laws because they had not posed the same problems -- their predations were generally considered to be beneficial, as they reduced pest populations.

The requirement for rabies vaccinations actually arose independently of the licensing requirement.  As the threat of rabies increased, dogs were required to be vaccinated as a condition of licensure.  Because cats are not licensed, they are not required to be vaccinated.  In contrast, some wildlife is vaccinated against rabies.  Obviously, rabies vaccination is not a characteristic that determines the difference between wildlife and domestic animals.

The legal distinction between wild and domestic animals actually depends on ownership.  Arizona follows the common law doctrine of animal ownership, which distinguishes "ferae naturae" (wild animals) from "domitae naturae" (domestic animals).  As the Arizona Court of Appeals explained in Booth v. State, 207 Ariz. 61, 83 P.3d 61 (Ct. App. 2004): "A wild animal, ferae naturae, as opposed to a domesticated animal, domitae naturae, is owned by the state or the people at large. An individual does not acquire property rights in an animal ferae naturae as long as the animal remains wild, unconfined, and undomesticated."  

A domestic cat, like a domestic dog, is not owned by the people at large, but rather by one person or family.  If a cat is feral, then he or she could be considered wildlife (ferae naturae), but the same could be said of a feral dog.  The "untamed" and "wild" nature that we often see in cats is not enshrined in the law.  Cats enjoy and deserve the same protection under Arizona's laws that covers dogs -- as well as other domestic animals, including livestock and exotic pets.  Don't let your cat's "savage side" fool you into believing that she is left to the wilds.

It just doesn't help.  Many dog owners, when their dog bites someone, rush to have the dog destroyed.  They seem to believe that doing so will appease the angry victims, who may have suffered serious physical injuries.  While it's understandable to want to reduce tensions, putting down your dog is not the answer.

First, the victims generally will still be upset.  They may have medical or veterinary bills that need to be paid, and they likely will still feel the trauma of the situation.  They might feel that "justice has been done" when you destroy your dog, but it won't stop them from suing you anyway.  I have seen far too many cases where a dog owner gets sued after the dog has been destroyed to believe that victims are placated so quickly.

Second, it does not affect your liability.  In Arizona, a dog's owner is strictly liable whenever the dog bites someone, unless the person was trespassing or provoked the dog.  There is no defense to liability by demonstrating that the dog is now dead.

Third, it will prevent you from gathering evidence that may help you.  As noted above, provocation is a defense to liability for a dog bite.  The Arizona legislature has decided that provocation should be decided based on what a human thinks is provocative, and not what a dog thinks.  While this is a genuinely stupid law, it still allows for education of the judge or jury as to what a reasonable person should think is provocative to a dog.  Here, an animal behaviorist can be helpful, by explaining what provokes a dog and why.  The behaviorist also can evaluate your dog and offer an opinion about whether or not your dog was actually provoked during the bite.  If your dog is dead, however, the behaviorist will be unable to do this.

Finally, and perhaps most importantly, it will make you feel like a terrible person.  If your dog is dangerous, a judge will likely order that he be destroyed anyway.  Don't volunteer for this painful task -- leave this decision to someone whose job it is to make tough choices every day.  Then, when your dog breathes his last, both you and he will know that you tried to spare him.  It may be small comfort in such a sad situation, but it beats the guilt that comes with knowing that you discarded your friend when he became a liability.

Being a lawyer means often correcting the legal misconceptions of others.  As an animal lawyer, one of the most common misconceptions that I encounter is the so-called "6-day Rule."  I am often informed that, according to Arizona law, any person who possesses an animal for more than six days becomes the owner of that animal.  This is NOT true.  Determination of the ownership of an animal, just like ownership of any property, depends on the evidence that a person can provide demonstrating a claim to ownership.  While duration of possession can be an important piece of evidence, it is not conclusive.

The "6-day Rule" comes from Arizona Revised Statutes section 11-1001(10).  This section provides the definitions that are applicable to the article of Title 11 dealing with animal control functions.  This specific subsection defines an owner, for the purposes of animal control issues and the statute regarding assault with a vicious animal as "any person keeping an animal other than livestock for more than six consecutive days."  The purpose of this definition is not to cause any change in ownership of an animal that someone holds for more than six days.  If that were so, then any kennel that watched a person's dog on a week-long trip would then own the dog.  Rather, the point of this definition is to impose liability on anyone who has an animal for more than six days, as it is reasonable to conclude that the person has some degree of control over the animal.

This is clear by looking at the first sentence of section 11-1001, which indicates that it applies only to that article (and the assault statute).  The other statutes in that article deal with issues like dog licensing, rabies vaccinations, dogs at large, and bites.  None of these statutes deal with deciding ownership of an animal.  Thus, the "6-day Rule" is not much of a rule at all -- unless the dog you've been watching for a week happens to bite someone.

Whenever I have a case that involves an injury to or the death of a companion animal, I inevitably encounter some variation of the following statement: "The measure of damages for a companion animal is the animal's fair market value."  It has become a mantra among the legal community, at least for those who have bothered to consider the issue.  Insurance adjusters and their retained attorneys assert this like it is the foundation of reality.  I even hear it from attorneys and judges who profess to be big advocates of better treatment for animals, and who have and care for companion animals at home.  The truth of the matter, however, is that this statement simply does not accurately reflect the law.  And the sad impact of this widely mis-accepted rule is that it denies any meaningful recovery to those who have lost a furry, feathered, or scaly member of their family, as companion animals (especially those rescued from a shelter) generally have no market value.

The case that started this line of thinking is Roman v. Carroll, 621 P.2d 307 (Ariz.Ct.App. 1980).  Though the whole opinion is only two paragraphs long, it was treated as though it were a lengthy and thoughtful analysis of companion animal damages.  It was not.  Simply put, Roman v. Carroll stated that a companion animal's owner is not allowed to recover emotional distress damages for witnessing the negligent death of her companion animal.  It did not establish a "fair market value only" rule.

Next in the saga came Jeter v. Mayo Clinic Arizona, 121 P.3d 1256 (Ariz.Ct.App. 2005).  Though this case had nothing to do with non-human animals (it dealt with the loss of cryogenically preserved embryos), it did address the issue of emotional distress damages for the loss of property, and addressing Roman in a footnote, essentially limited Roman to its facts.

For a little while, it seemed that Jeter would be the undoing of the Roman rule.  In 2009, though, the Court of Appeals decided Kaufman v. Langhofer, 222 P.3d 272 (Ariz.Ct.App. 2009).  In this case, the court determined that a person cannot claim emotional distress damages for the death of a companion animal, whether the person witnessed the death or not.  I represented several amicus curiae at the Court of Appeals on this case, and as I have so often seen, the judges were sympathetic to my position -- and then ruled unanimously against it.

Kaufman is often used by my opposing counsel.  Sometimes, they point out that I actually argued the case, and therefore I should know better than to seek anything more than "fair market value."  A careful reading of Kaufman, though, reveals that although the court recognized that "fair market value" is often the measure of such damages, the court also did not establish that it is always the rule.  (I think it important to note that the only case cited by the court in Kaufman in support of this proposition involved bees, and not a companion animal.)

Thus, we are left with common law cases not involving animals to determine how much they should be worth.  The good news is that Arizona has recognized the "actual value to owner" test for property having little or no fair market value since 1925.  See Jones v. Stanley, 233 P. 598 (1925).  This rule applies to the valuation of companion animals at least as much as the rule in Kaufman -- in fact, the court in Kaufman specifically declined to address the "actual value to owner" rule (see paragraphs 20-21), while noting that Jones v. Stanley is still good law.

Thus, contrary to the general attitude of most lawyers and judges in Arizona, the law in this state DOES allow a companion animal owner to recover more than "fair market value" for his or her lost friend.  Do not be persuaded otherwise.