Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Wednesday, December 31, 2014

Year in Review, 2014.

Books Read (in order read)
1. Catching the Wolf of Wall Street by Jordan Belfort (2009)
2. You Herd Me! I'll Say It If No One Else Will by Colin Cowherd (2013)
3. I Wear the Black Hat: Grappling with Villains by Chuck Klosterman (2013)
4. The Five Love Languages: How To Express Heartfelt Commitment To Your Mate by Gary D. Chapman (2006) [cd, unabridged]
5. The Liberty Amendments: Restoring the American Republic by Mark R. Levin (2013)
6. The Wolf of Wall Street by Jordan Belfort (2007)
7. The Buy Side: A Wall Street Trader's Tale of Spectacular Excess by Turney Duff (2013)
8. Double Down: Game Change 2012 by Mark Halperin and John Heilemann (2013) [cd, unabridged]
9. Killing Yourself to Live: 85% of a True Story by Chuck Klosterman (2005)
10. Hotel California by Barney Hoskyns (2006)
11. The Bully Pulpit: Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism by Doris Kearns Goodwin (2013) [cd, unabridged]
12. Skywalker: Close Encounters on the Appalachian Trail by Bill Walker (2008)
13. Crazy Love: Overwhelmed by a Relentless God by Francis Chan with Danae Yankoski (2008)
14. Lone Survivor: The Eyewitness Account of Operation Redwing and the Lost Heroes of SEAL Team 10 by Marcus Luttrell with Patrick Robinson (2007) [cd, unabridged]
15. Never Trust a Liberal Over 3--Especially a Republican by Ann Coulter (2013)
16. The Happiest Life: Seven Gifts, Seven Givers, and the Secret to Genuine Success by Hugh Hewitt (2013)
17. How Jesus Became God: The Exaltation of a Jewish Preacher from Galilee by Bart D. Ehrman (2014)
18. Flash Boys: A Wall Street Revolt by Michael Lewis (2014)
19. Dying for Triplicate: A True Story of Addiction, Survival & Recovery by Todd A. Zalkins (2011)
20. Godless: The Church of Liberalism by Ann Coulter (2006) [cd, unabridged]
21. Mystic Rhythms: The Philosophical Vision of Rush by Carol Selby Price and Robert M. Price (1998)
22. Bait and Switch: The (Futile) Pursuit of the American Dream by Barbara Ehrenreich (2005) [cd, unabridged]
23. Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge by Frederic Block (2012)
24. The Agent: My 40-Year Career Making Deals and Changing the Game by Leigh Steinberg (2014)
25. Colonel Roosevelt by Edmund Morris (2010) [cd, unabridged]
26. Trust Me I'm Lying: Confessions of a Media Manipulator by Ryan Holiday (2013)
27. Tweak: Growing Up on Methamphetamines by Nic Sheff (2008)
28. Zen and the Art of Motorcycle Maintenance: An Inquiry Into Values by Robert M. Pirsig (1974) [cd, unabridged]
29. A Year of Biblical Womanhood by Rachel Held Evans (2012)
30. The Year of Living Biblically: One Man's Humble Quest to Follow the Bible as Literally as Possible by A.J. Jacobs (2007)[cd, unabridged]
31. The Guinea Pig Diaries: My Life as an Experiment by A.J. Jacobs(2009)
32. America Again: Re-becoming the Greatness We Never Weren't by Stephen Colbert (2012) [cd, unabridged]
33. Not Cool: The Hipster Elite and Their War on You by Greg Gutfeld (2014)
34. No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State by Glenn Greenwald (2014)
35. Duty: Memoirs of a Secretary at War by Robert M. Gates (2014) [cd, unabridged]
36. The Divide: American Injustice In The Age Of The Wealth Gap by Matt Taibbi (2014)
37. Drop Dead Healthy: One Man's Humble Quest for Bodily Perfection by A.J. Jacobs (2012) [cd, unabridged]
38. Keeping It Civil: The Case of the Pre-nup and the Porsche & Other True Accounts from the Files of a Family Lawyer by Margaret Klaw (2013)
39. The Rise of Theodore Roosevelt by Edmund Morris (1979) [cd, unabridged]
40. Anarchy Evolution: Faith, Science, and Bad Religion in a World Without God by Greg Graffin and Steve Olson (2010)
41. Churched: One Kid's Journey Toward God Despite a Holy Mess by Matthew Paul Turner (2008)
42. Theodore Rex by Edmund Morris (2001) [cd, unabridged]
43. The Know-It-All: One Man's Humble Quest to Become the Smartest Person in the World by A.J. Jacobs (2004)
44. Is Belief in God Good, Bad or Irrelevant?: A Professor and a Punk Rocker Discuss Science, Religion, Naturalism & Christianity edited by Preston Jones (2006)
45. Nothing is Impossible: Reflections on a New Life by Christopher Reeve (2002) [cd, unabridged]
46. The Hollywood Economist: The Hidden Financial Reality Behind the Movies by Edward Jay Epstein (2010)
47. Darkness Visible: A Memoir of Madness by William Styron (1990)
48. Blindsided: Lifting a Life Above Illness: A Reluctant Memoir by Richard M. Cohen (2004) [cd, unabridged]
49. Sideways: A Novel by Rex Pickett (2004)[cd, unabridged]
50. The Joy of Hate: How to Triumph Over Whiners in the Age of Phony Outrage by Greg Gutfeld (2012)
51. I Don't Believe in Atheists by Chris Hedges (2008)
52. Brand NFL: Making and Selling America's Favorite Sport by Michael Oriard (2007)
53. Jesus on Trial: A Lawyer Affirms the Truth of the Gospel by David Limbaugh (2014)
54. The Lawyer Bubble: A Profession in Crisis by Steven J. Harper (2013)
55. Ten Lessons to Transform Your Marriage: America's Love Lab Experts Share Their Strategies for Strengthening Your Relationship by John M. Gottman, Julie Schwartz Gottman and Joan DeClaire (2006)
56. Broken: My Story of Addiction and Redemption by William Cope Moyers with Katherine Ketcham (2006)
57. Stranger in a Strange Land by Robert A. Heinlein (1961) [cd unabridged]
58. Wide Awake: Spirituality Without Religion by Sam Harris (2014)
59. Citizens of the Green Room: Profiles in Courage and Self-Delusion by Mark Leibovich (2014)
60. Infinite Jest by David Foster Wallace (1996)

Athletic Achievement of the Year
Summited Mt. San Jacinto, 10,834 feet

Book of Year
The Divide: American Injustice In The Age Of The Wealth Gap by Matt Taibbi (2014)
Honorable Mention: Flash Boys: A Wall Street Revolt by Michael Lewis (2014)

Movie of the Year
Honorable Mention: Whiplash

Concert of the Year
Honorable Mention: Bad Religion

Losses Sustained
Beth Kuttler (law partner)

Trial of the Year
As fun as a withering cross-examination can be, or as gratifying as a compelling closing argument can feel, sometimes the best trial result is the one short-cutting all of those entertaining machinations. I represented a client who had loaned a considerable amount of money to a corporation. After the corporation failed to pay and a lawsuit ensued, the corporate defendant asserted, through its attorney, a myriad of affirmative defenses claiming the loan was unenforceable. As is my custom in most cases, I served a series of requests for admission that, if admitted, would establish all of the elements of my client's claims and damages, but would also eviscerate all of the purported defenses. The corporation refused to answer the requests. In turn, I obtained an order deeming all the requests admitted. So as the trial approached, I prepared a single motion in limine asking the trial court to rule at the outset of the trial that judgment should be entered in my client's favor. The trial court granted the motion and the trial ended without my having to call a single witness. Thereafter, I brought a motion for attorney's fees which was granted in its entirety. Anti-climatic, but short and sweet.

Appeal of the Year
My client was a high school athlete. He played football, at least that is what he signed up for. However, during practice one day, the coach had the team perform drills whereby it would divide into squads that would crash into each other akin to what occurs during kickoffs. The kicker was that the students were in full pads but were not provided helmets or mouth-guards. Not surprisingly, the drill went awry; my client's jaw was obliterated. He filed suit (through another law firm). The school district brought a motion for summary judgment om the ground of "assumption of the risk". The trial judge granted the motion. We advanced an appeal that essentially argued that the doctrine of "assumption" did not apply because the coach increased the inherent risk of the sport, by conducting a drill that was not inherent in the sport. In other words, while my client might have signed up to play football, he did not sign up to play rugby or whatever amalgam that drill constituted. Thus, the "assumption" doctrine did not apply and the motion for summary judgment cold not stand. The appellate court agreed and reversed unanimously for a trial on the merits.

Tuesday, December 31, 2013

Year in Review, 2013.

Books Read (in order read)
1. Arguably: Essays by Christopher Hitchens (2011)
2. Imperfect Justice: Prosecuting Casey Anthony by Jeff Ashton with Lisa Pulitzer (2011)
3. Free Will by Sam Harris (2012)
4. Full Service by Scotty Bowers with Lionel Friedberg (2012) [cd,unabridged]
5. Presumed Guilty by Jose Baez and Peter Golenbock (2012)
6. G-d, No!: Signs You May Already Be an Atheist and Other Magical Tales by Penn Jillette (2011)
7. Following Atticus: Forty-Eight High Peaks, One Little Dog, And An Extraordinary Friendship by Tom Ryan (2011)
8. Life After Death by Damien Echols (2012)
9. Predator Nation by Charles H. Ferguson (2012)
10. Going Clear: Scientology, Hollywood and the Prison of Belief by Lawrence Wright (2013) [cd, unabridged]
11. Sex, Mom, and God: How the Bible's Strange Take on Sex Led to Crazy Politics--and How I Learned to Love Women (and Jesus) Anyway by Frank Schaeffer (2011)
12. What We Talk About When We Talk About God by Rob Bell (2013)
13. Bet The House: How I Gambled Over a Grand a Day for 30 days on Sports, Poker and Games of Chance by Richard Roeper (2010)
14. Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It by Richard H. Sander and Stuart Taylor, Jr. (2012)
15. The High Adventure of Eric Ryback: Canada to Mexico on Foot by Eric Ryback (1971)
16. Red by Sammy Hagar with Joel Selvin (2011)
17. Eat and Run: My Unlikely Journey to Ultramarathon Greatness by Scott Jurek with Steve Friedman (2012)
18. Dogs, Camping, and Other Candid Tales -- Life Lessons From the Out-of-Doors by G. Roger Schoenhals (2012)
19. How God Became King: The Forgotten Story of the Gospels by N.T. Wright (2012)
20. The Price of Politics by Bob Woodward (2012) [cd,unabridged]
21. The Ultimate Journey: Canada to Mexico Down the Continental Divide by Eric and Tim Ryback (1973)
22. A Short History of Nearly Everything by Bill Bryson (2003)[cd,unabridged]
23. By Men or By Earth by Tyler Coulson (2013, 2d ed.)
24. I Promise Not to Suffer: A Fool for Love Hikes the Pacific Crest Trail by Gail D. Storey (2013)
25. The Operators: The Wild and Terrifying Inside Story of America's War in Afghanistan by Michael Hastings (2012)
26. Between the Bylines: The, Love and Loss of Los Angeles's Most Colorful Sports Journalist by Doug Krikorian (2013)
27. Is College Worth It?: A Former United States Secretary of Education and a Liberal Arts Graduate Expose the Broken Promise of Higher Education by William J. Bennett and David Wilezol (2013)
28. Inferno: A Novel by Dan Brown (2013) [cd, unabridged]
29. Skywalker: Highs & Lows on the Pacific Crest Trail by Bill Walker (2010)
30. Journal of the Dead: A Story of Friendship and Murder in the New Mexico Desert by Jason Kersten (2003)
31. Neither Here Nor There: Travels in Europe by Bill Bryson (1991) [cd, unabridged]
32. Zealot: The Life and Times of Jesus of Nazareth by Reza Aslan (2013)
33. The Man Who Walked Through Time by Colin Fletcher (1967)
34. This Town: Two Parties and a Funeral--Plus, Plenty of Valet Parking!--in America's Gilded Capital by Mark Leibovich (2013 [cd, unabridged]
35. Darwin's Doubt: The Explosive Origin of Animal Life and the Case for Intelligent Design by Stephen C. Meyer (2013)
36. Shaping Our Nation: How Surges of Migration Transformed America and Its Politics by Michael Barone (2013)
37. David and Goliath: Underdogs, Misfits, and the Art of Battling Giants by Malcolm Gladwell (2013)[cd, unabridged]
38. Eleven Rings: The Soul of Success by Phil Jackson and Hugh Delehanty 2013) [cd, unabridged]
39. Kings of Tort by Alan Lange and Tom Dawson (2010)
40. League of Denial: The NFL, Concussions, and the Battle for Truth by Mark Fainaru-Wada and Steve Fainaru (2013)

Film of the Year
The Place Beyond the Pines
Honorable Mention: American Hustle

Book of the Year

By Men or By Earth by Tyler Coulson (2013, 2d ed.)
Honorable Mentions: Zealot: Life and Times of Jesus of Nazareth by Reza Aslan (2013) and Following Atticus: Forty-Eight High Peaks, One Little Dog, And An Extraordinary Friendship by Tom Ryan (2011)

Athletic Achievement of the Year
Summitted Mt. Baldy (aka Mt. San Antonio, 10,064 feet)

Trial of Year
My client, a beneficiary, sought an order compelling a distribution of a real property pursuant to a trust provision. The trustees opposed the distribution and sought an order keeping the property in the trust. Both the trust's drafting attorney and the trustee (who was given a life estate over the property in question) testified that it was the trustor's intent (stated to them) that the property be held in trust until the end of the life estate. We countered that the trust's text provided that the property was to be distributed upon the trustor's death, subject to the life estate. The trial court granted our petition and denied the trustee's petition and ordered an immediate distribution in favor of my client. In so doing, the court found that I had impeached the drafting attorney's testimony. The judge stated that in light of the drafting attorney's testimony two options remained: (1)the attorney received instructions from the trustor that the property remain in trust but she did not include language in the trust to effectuate this intent which was tantamount to "malpractice"; or (2)the attorney was lying to the court. The trial judge said he did not need to resolve the question of which option adhered to rule in my client's favor, but he went on to state that he thought it was option number two given the impeaching testimony I had highlighted at trial from the drafting attorney's deposition I took months earlier and the attorney's apparent motivation to avoid malpractice. I didn't want to embarrass a fellow member of the bar, but it was beyond dispute that the attorney would not answer my questions and would not refrain from shading her testimony for her perceived benefit. In the end, she embarrassed herself and my client prevailed.

Appeal of the Year
My opponents appealed a judgment refusing to grant them title to property to a shopping center in Southern California. They also appealed an order denying them attorneys' fees. Applying the heightened "abuse of discretion" standard I argued applied, the appellate court rejected their appeal and affirmed. In so doing, one of the lines from the opinion rejecting my opponents' contention was a sharp, "That is not true."

Concert of The Year
Depeche Mode

Losses Sustained
Dr. Jerry Buss
Dr. Robert J. Radcliffe (my dad)

“His lord said to him, ‘Well done, good and faithful servant; you have been faithful over a few things, I will make you ruler over many things. Enter into the joy of your lord.’” (Matthew 25:23 NKJV.)
The words “good and faithful servant” have never applied to a human more than Robert James Radcliffe.
He never wavered to the very end. He was always faithful. His faithfulness was perhaps best exhibited in the three most important areas of his life: his mission, his ministry and his marriage.

By mission, I mean his focus to achieve personal goals. In other words, his personal mission statement. At least five (5) come readily to mind: education, technology, music, books, and nature.

A. Education.
First, he believed in education. He persevered until he obtained his Ph.D in Education. I had the pleasure to accompany dad to classes at Claremont Graduate School. They would sit around a conference room table discussing big ideas. I remember how much dad like to talk about philosophy while he was studying in this program. It seemed like he is familiar with all the “isms” there were in the world. It is not coincidence that his dissertation for this Ph.D. was called The Compromise of Mission of Church-Related Colleges. His book studies how schools that were originally Christian had lost their way, i.e. did not remain faithful to their mission. At the end of his program, one of his advisors who has not a Christian, asked him did we change your mind? He said no, this education made me more convinced of my beliefs.

B. Technology.
He was an early adopter of technology. He was ahead of the curve, especially with respect to computers. We had computer in the house by 1981. He counseled us to take typing, but he foresaw that computers would revolutionize life.

C. Music.
Dad was accomplished in music. He was a gifted singer who sang powerful solos, duets and even in choirs. He learned to play the guitar, and had success playing brass instruments in marching bands, which he continued later in life at nursing homes.

D. Books.
I was always impressed with how many books Dad had at his office. An entire wall was filled with books. Plus he knew how to read them. Once I thought I figured out a way to shortcut reading them. I said one could skip over the preface or the introduction and get right to the “meat” . Dad corrected me. He rightly said that sometimes the most important material is found in the preface or introduction. How true this turned out to be. Also, he didn’t just show his enjoyment by reading books, he wrote them too. His book about being a pastor is still used in seminary courses to this day.

E. Nature.
Dad loved nature. He took us on trips to Yosemite, Yellowstone, Zion, Bryce Canyon and other national parks. I remember camping with him, just the two of us, not far from here in Lake Arrowhead area. He took us as a family right here—to Big Bear Lake every summer while growing up. Dad was comfortable in the outdoors. He knew how to fish, make fires, cook in the outdoors, and make a camp. Camping in Yosemite Valley one summer I got afraid that bears were waiting to devour me and retreated to sleep in the car. Fearless, dad remained in the tent snugly in his sleeping bag. He reported it was one of his most comfortable slumbers ever. He was a pretty good around horses too, a story I will get to.

He started his ministry in the church. In fact, he got his bachelor’s and master’s degrees with the sole focus to get into ministry. He turned down an opportunity to study at the University of Illinois so that he could go to the premier Christian college in the country, Wheaton. Good call, because that’s where he met mom, and most of us would not be here without that choice. As a pastor, he was one who poured him life into other people. He and mom said that the most important and long-lasting investment one can make is in other people. He lived that maxim. One story illustrating that principle occurred right here in Big Bear. Every summer he would take a group from the church to horseback ride. One summer we were on such a horseback ride when a woman’s horse was spooked reared up, bucked the woman off, and then drove his hoof into the woman’s arm. This caused her arm to open and bleed profusely. Dad didn’t run away, defer to someone else, or stand paralyzed with fear. He took his shirt off and sued it to apply a compress to the wound. It stopped the bleeding enough for the woman, who ironically was named Mrs. Payne, for the woman’s arm to be saved (after going the hospital).
He transitioned his ministry into education. He explained me why he did this. Multiplication principle. Book called The Master Plan of Evangelism by Robert E. Coleman. Jesus and disciples. Jesus poured his life into his disciples, who in turn could spread is message after he left the earth bodily. By the same token, Dad enjoyed mentoring and ministering to people in his church, but he realized that if he could train other pastors, not only would he minister to them, but they in turn would multiply dad when they pastored their own churches. Having the opportunity to go to the same university while he taught there I got to see firsthand what effect he had on his students. They called him Daddy Rad. It was ok to share him with others who called him dad too. He was very respected and made my very proud.

Dad exemplified faithfulness in his marriage. Married in 1964 he remained faithful to mom until his death. He and mom were married 49 years. As an extension of his marriage, he was a good father. In addition to imparting these life lessons—some of which he covered already--through words and his deeds, he spent quality time with us. I remember times throwing the baseball around (I found out form his brother, John, that he was an excellent pitcher growing up), shooting baskets out front of the house (a backboard and hoop he and I installed together), and having him root for me during my games.

Reflecting back on all of this and other wonderful things about dad, I’m confident he has received the greeting in heaven, “well done good and faithful servant.” I can only echo that by saying “Well done.” And thank you; we love you; we shall never forget you.

Wednesday, January 02, 2013

Year in Review, 2012.

Books Read (in no particular order)
1. Losing It: In Which an Aging Professor Laments... (2011) by William Ian Miller
2. Inside Scientology (2011) by Janet Reitman
3. The New New Rules (2011) by Bill Maher
4. Here Comes Trouble (2011) by Michael Moore
5. I Lost My Love in Baghdad: A Modern War Story by Michael Hastings
6. Hilarity Ensues (2012) by Tucker Max
7. I Hope They Serve Beer In &%#$ (2009) by Tucker Max
8. Born to Run: A Hidden Tribe, Superathletes, and the Greatest Race the World Has Never Seen (2009) by Christopher McDougall
9. A Supposedly Fun Thing I'll Never Do Again: Essays and Arguments by David Foster Wallace
10. Quiet (2012) by Susan Cain
11. Godforsaken (2012) by Dinesh D'Souza
12. Game Change: Obama and the Clintons, McCain and Palin, and the Race of a Lifetime by John Heilemann and Mark Halperin [cd, unabridged]
13. Boomerang: Travels in the New Third (2011) by Michael Lewis
14. Heaven and Mel (2012) by Joe Esterzhas
15. Running on Empty: An Ultramarathoner's Story of Love, Loss, and a Record-Setting Run Across America (2011) by Marshall Ulrich
16. Steve Jobs (2011) by Walter Isaacson
17. Coming Apart: The State of White America, 1960-2010 (2012) by Charles Murray
18. Run!: 26.2 Stories of Blisters and Bliss (2011) by Dean Karnazes
19. Bossypants (2011) by Tina Fey [cd, unabridged]
20. The Letter: My Journey Through Love, Loss & Life (2012) by Marie Tillman
21. Wild: From Lost to Found on the Pacific Crest Trail (2012) by Cheryl Strayed
22. Failing Law Schools (2012) by Brian Tamanaha
23. AWOL On the Appalachian Trail (2010) by David Miller
24. Einstein: His Life and Universe by Walter Isaacson [cd, unabridged]
25. A Blistered Kind of Love: A Couple's Trial by Trail by Angela & Duffy Ballard
26. A Walk in the Woods: Rediscovering America on the Appalachian Trail by Bill Bryson [cd, unabridged]
27. Quitter (2011) by Jon Acuff
28. Notes from a Small Island by Bill Bryson [cd, unabridged]
29. The Day the Earth Caved In: An American Mining Tragedy by Joan Quigley
30. Tangled Webs: How False Statements Are Undermining America: From Martha Stewart to Bernie Madoff (2011) by James B. Stewart
31. The Cactus Eaters: How I Lost My Mind--And Almost Found Myself--On The Pacific Crest Trail by Dan White
32. The Brief Against Obama (2012) by Hugh Hewitt
33. In a Sunburned Country (about Australia) by Bill Bryson [cd, unabridged]
34. Private Empire: ExxonMobil and American Power (2012) by Steve Coll [cd, unabridged]
35. Don't Go To Law School (Unless) by Paul Campos (2012)
36. Bad Religion: How We Became a Nation of Heretics (2012) by Ross Douthat
37. The Life and Times of the Thunderbolt Kid: A Memoir by Bill Bryson [cd, unabridged]
38. Too Fat To Fish by Artie Lange with Anthony Bozza [cd, unabridged]
39. Not Taco Bell Material (2012) by Adam Corolla
40. No Easy Day: The Firsthand Account of the Mission That Killed Osama Bin Laden (2012) by Mark Owen (pseudonym) and Kevin Maurer
41. Consider the Lobster And Other Essays by David Foster Wallace
42. Eat, Pray, Love: One Woman's Search for Everything Across Italy, India and Indonesia by Elizabeth Gilbert [cd, unabridged]
43. In Fifty Years We'll All Be Chicks: . . . And Other Complaints from an Angry Middle-Aged White Guy (2010) by Adam Carolla
44. Why I Left Goldman Sachs: A Wall Street Story (2012) by Greg Smith
45. The Oath: The Obama White House and the Supreme Court (2012) by Jeffrey Toobin [cd, unabridged]
46. The Big Miss: My Years Coaching Tiger Woods (2012) by Hank Haney [cd, unabridged]
47. Mortality (2012) by Christopher Hitchens
48. Confidence Men: Wall Street, Washington, and The Education of a President (2011) by Ron Suskind

Book of the Year
Bad Religion: How We Became a Nation of Heretics (2012) by Ross Douthat
Honorable Mentions: Coming Apart: The State of White America, 1960-2010 (2012) by Charles Murray and Quiet (2012) by Susan Cain

Concert of the Year

Losses Sustained
Charles Colson
Frank Pastore
Junior Seau

Film of the Year
Arbitrage and Flight (tie)
Honorable Mention: Argo

Athletic Accomplishment of the Year
Summited Saddleback Mountain (Santiago Peak)

Trial of the Year (arbitration)
Corporate client executed consulting agreement with hospital to obtain provider contract that had long eluded hospital (after its cancellation many years ago). Client was successful in securing lucrative provider contract. Once hospital had provider contract in hand, it refused to honor consulting agreement, which included a substantial success fee to Client. Client and hospital mediated. The parties fashioned a settlement agreement (with mutual and general releases). Hospital failed to honor settlement agreement (even while enjoying the benefits of provider contract). Client sued. Hospital moved to arbitrate pursuant to arbitration clause in consulting agreement. In arbitration, which I conducted, hospital argued the contract was "illegal" and demanded return of the money it had paid Client (prior to and in addition to success fee). The arbitration involved complex testimony of experts as well as percipient witnesses. Arbitrator granted every penny requested to my Client and denied the cross-complaint in its entirety. I moved to confirm the arbitration award as a judgment. Hospital argued the award should be vacated and asked the court to take up its "illegality" argument. The trial court rejected the hospital's argument in its entirety and confirmed the award. The court issued judgment for my client. Hospital appealed. However, the hospital did not post a bond or otherwise seek a stay of enforcement. My colleague initiated judgment collection efforts and reached full payment, which the Sheriff's office (who did the levying) reported was the largest recovery they had ever seen. The hospital dismissed the appeal.


Saturday, December 31, 2011

Year in Review, 2011.

Books Read (in no particular order)

1. Fate, Time and Language: An Essay on Free Will (2011) by David Foster Wallace.
2. Forged: Writing in the Name of God--Why the Bible's Authors Are Not Who We Think They Are (2011) by Bart D. Ehrman.
3. Malled: My Unintentional Career in Retail (2011) by Caitlin Kelly.
4. The Reason for God: Belief in an Age of Skepticism (2008) by Tim Keller.
5. Easter Everywhere: A Memoir (2008) by Darcey Steinke.
6. The Moral Landscape: How Science Can Determine Human Values (2011) by Sam Harris.
7. Laker Girl (2010) by Jeannie Buss & Steve Springer.
8. Conservative Assault on the Constitution (2010) by Erwin Chemerinsky.
9. Kitchen Confidential by Anthony Bourdain.
10. Waiter Rant: Thanks for the Tip--Confessions of a Cynical Waiter (2009) by Steve Dublanica.
11. Crazy for the Storm: A Memoir of Survival (2010) by Norman Ollestad.
12. The Fall of the House of Zeus: The Rise and Ruin of America's Most Powerful Trial Lawyer (2010) by Curtis Wilkie.
13. Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR Is Killing Health Care & Deceiving Americans (2010) by Wendell Potter.
14. The Grand Design (2010) by Stephen Hawking (& Mlodinow).
15. Griftopia (2010) by Matt Taibbi.
16. Those Guys Have All the Fun: Inside the World of ESPN (2011) by James Andrew Miller and Tom Shales.
17. On B___S___ (2005) by Harry G. Frankfurt.
18. Love Wins: A Book About Heaven, Hell and the Fate of Every Person Who Ever Lived (2011) by Rob Bell.
19. Although of Course You End Up Becoming Yourself: A Roadtrip With David Foster Wallace (2010) by David Lipsky.
20. The Pale King (2011) (CD, unabridged) by David Foster Wallace.
21. Divinity of Doubt: The God Question (2011) by Vincent Bugliosi.
22. Truth and Consequences: Life Inside the Madoff Family (2011) by Laurie Sandell.
23. The Rogue: Searching for the Real Sarah Palin (2011) by Joe McGinniss.
24. Of Thee I Zing (2011) by Laura Ingraham with Raymond Arroyo.

Losses Sustained

Christopher Hitchens

Concerts Experienced

1. 311/Sublime
2. Chicago
3. Sade/John Legend
4. blink182/My Chemical Romance

Appeal of the Year

Appealed ruling of trial court refusing to compel arbitration. The trial court determined that the arbitration clause in a franchise agreement was purportedly "unconscionable." Court of appeal reversed on 3-0 vote, holding it was not "unconscionable" and published the opinion, making it precedent throughout the State of California.

Trial of the Year

Client hired law firm to represent him in a securities fraud case, claiming millions in damages. That law firm obtained an award of approximately $30,000. Thereafter, the law firm sued my client for its attorneys' fees approximating half a million dollars. We asserted that the law firm was retained pursuant to a contingency fee agreement, so their fee was about $10,000. While the law firm claimed that it "rescinded" the attorney-client fee agreement due to purported breaches of contract and thus was entitled to it hourly rates of over $550, we argued that rescission was unable under the circumstances and asserted the contingency fee controlled. The trial court agreed with us.

Book of the Year

Crazy for the Storm: A Memoir of Survival
(2010) by Norman Ollestad. Beautiful tribute to his father, also named Norman, a California attorney, whose life lessons ended up saving the son's life in a tragic airplane crash that took his father's life.

Film of the Year

Drive with Ryan Gosling. Film noir, the movie does so much with so little words. A testament to fine acting and directing. With his other two movies this year: Ides of March and Crazy, Stupid, Love, no actor had a stronger triad this year.


Friday, December 31, 2010

Year in Review, 2010.

Books Read (in no particular order)

1. The Case for God (2009) by Karen Armstrong (reviewed 1/10/10);

2. In-N-Out Burger: A Behind the Counter Look at the Fast-Food Chain that Breaks All the Rules by Stacy Perman (reviewed 1/17/10);

3. Patience with God: Faith for Those Who Don't Like Religion (or Atheism) (2009) by Frank Schaeffer (reviewed 1/24/10);

4. Comeback America: Turning the Country Around and Restoring Fiscal Responsibility by David M. Walker (reviewed 1/28/10);

5. Hitch-22: A Memoir (2010) by Christopher Hitchens (reviewed 12/23/10);

6. The Big Short: Inside the Doomsday Machine (2010) by Michael Lewis (reviewed 10/13/10);

7. No One Would Listen (2010) by Harry Markopolos (reviewed 8/18/10);

8. War (2010) by Sebastian Junger (reviewed 7/22/10);

9. Courage and Consequence: My Life as a Conservative in the Fight (2010) by Karl Rove (reviewed 7/6/10);

10. The Big Sort: Why the Clustering of Like-Minded America is Tearing Us Apart (2008) by Bill Bishop (reviewed 6/13/10);

11. The Politician: An Insider's Account of John Edward's Pursuit of the Presidency and the Scandal That Brought Him Down (2010) by Andrew Young (reviewed 6/12/10);

12. Circle of Greed: The Spectacular Rise and Fall of the Lawyer Who Brought Corporate America to Its Knees (2010) by Patrick Dillon and Carl M. Cannon (reviewed 5/22/10);

13. Last Words (2009) by George Carlin with Tony Hendra (reviewed 5/19/10);

14. The Happiness Project (2009) by Gretchen Rubin (reviewed 4/21/10);

15. Jesus Wants to Save Christians: A Manifesto for the Church in Exile (2008) by Rob Bell and Don Golden (reviewed 4/10/10);

16. Nickel and Dimed: On (Not) Getting By in America by Barbara Ehrenreich (reviewed 4/9/10);

17. What the Dog Saw (2009) by Malcolm Gladwell (reviewed 4/4/10);

18. Velvet Elvis by Rob Bell (reviewed 3/15/10);

19. Working in the Shadows: A Year of Doing Jobs [Most] Americans Won't Do (2010) by Gabriel Thompson (reviewed 3/8/10);

20. Too Big To Fail (2009) by Andrew Ross Sorkin (reviewed February 25, 2010);

21. The Devil's Delusion: Atheism and Its Scientific Pretensions (2008) by David Berlinski (reviewed 2/24/10);

22. What's So Great About Christianity by Dinesh D'Souza (via CD) (reviewed 2/9/10);

23. $%&#@ Finish First (2010) by Tucker Max;

24. The Blind Side by Michael Lewis;

25. Liar's Poker by Michael Lewis;

26. Can I Be Sure I'm Saved by R.C. Sproul;

27. Better by John O'Brien

Losses Sustained

Dr. Lawrence Schoenhals (grandfather)

Film of the Year

Because screenwriter Aaron Sorkin improved book (The Accidental Billionaires, reviewed here on November 1, 2009), and Jesse Eisenberg and Justin Timberlake were revelations in their roles expect The Social Network to get "friended" by various award shows.

Book of the Year

Circle of Greed: The Spectacular Rise and Fall of the Lawyer Who Brought Corporate America to Its Knees by Patrick Dillon and Carl M. Cannon (reviewed 5/22/10).

Appeal of the Year

Any Question? Parts I-III (see posts on November 21, December 16 and 27, 2010).

Trial of the Year

My client sought to invalidate a grant deed purporting to remove his mother's house from her trust and granting it to his sister. The effect of this deed would have been to disinherit my client, since his mother had passed away and his sister sought to evict him from that house. I was able to show that the mother did not intend to give the property to her daughter outright. In invalidating the grant deed to the sister/daughter, the court relied upon testimony and documents of the daughter's prior attorney to the effect that the daughter knew (and acted like) the property was owned by the trust, notwithstanding the new grant deed to her. I was able to overcome the attorney-client privilege, in part, because the daughter sued her attorney and attached various documents to her court-filed documents in that prior action, which I obtained and used in my case.


Monday, December 27, 2010

Any Question, Part III.

Here are excerpts from my appellate reply brief. One can see from "Any Question, Part II" (see December 16, 2010 post below), the court of appeal drew from the reasonable intepretation theme and relied on the two major cases which I cited: Scharlin v. Superior Court of Orange County (1992) 9 Cal App.4th 162, and McIndoe v. Olivos (2005) 132 Cal.App.4th 483. Both opinions were handed down by the same appellate court which decided my client's appeal here.


'Interpretation must be reasonable.' (Cal. Civ. Code §3542.)

The Respondent’s Brief ... represents an extended exercise in unreasonable interpretations. It unreasonably interprets (a) the subject trust instrument; (b) the proposed Petition; and (c) California decisional authority, including this District’s own opinions.

First, Respondent’s proffered view that the no contest clause applies only to the original trust (RB, p. 3) as constituted at the time of its creation would render the no contest clause as superfluous and defeat its purpose. That purpose, of course, is to discourage the beneficiaries from challenging the trustors’ plan for administration and distribution of the trust assets in accordance with provisions set forth in the trust instrument. It would be unnecessary to apply the no contest clause only to the original trust when the trustors and trustees are both still alive. They obviously would not be applying it to themselves. Their inclusion of the no contest clause only makes sense when it is applied to the subtrusts, which take effect only after a death of a trustor/trustee, as here. (AA00077-79; AA000161-163.)

Second, Respondent’s Brief misinterprets the Petition, erroneously claiming that it only seeks to remove trustees for cause. (RB, p. 5.) To the contrary, the Petition seeks to invalidate one of the trustors’ most important decisions and provisions—an article designating who will serve as successor trustee—even before the successor trustee has ever so served. (AA000114-16.)

Third, Respondent’s Brief misinterprets several cases undermining its assertions, including those of this Court, to a similarly tortured result.

Because the Respondent’s Brief’s interpretive errors infect its analysis, it leads to the wrong result. Moreover, it does nothing to controvert the arguments of the Opening Brief, namely:

· The no contest clause of the trust explicitly applies to “any of the provisions” of the trust instrument, which necessarily includes the subtrusts established by the very same trust instrument;

· The trust clause designating the appointment of a successor trustee applies to the subtrusts; and

· The Petition constitutes a contest, because, among other things, it preemptively seeks to invalidate the successor trustee provision (Article 7.02 [AA00036, AA 000174]), which has not yet taken effect.

Accordingly, Appellant ... respectfully requests that this Court reasonably interpret the trust to uphold the trustor’s intent (the Appellant here) and binding California law, and rule that [Respondent's] Petition, seeking, among other things, to invalidate the successor trustee provision, violates the trust and subtrusts’ no contest clause."

* * *

"C. Respondent [ ] Misinterprets the Governing Authority

Try as he might, [Respondent] cannot get around this Court’s holding in Scharlin v. Superior Court of Orange County (1992) 9 Cal App.4th 162 [11 Cal.Rptr.2d 448]. The Scharlin Court was asked to determine if a no contest clause in an Amendment was able to modify an existing no contest clause in the general provisions of a trust as it related to an Irrevocable Decedent’s Trust (referred to as Trust B in the opinion). This Court held that because the Decedent’s Trust was irrevocable when the Amendment was executed, the Amendment’s no contest clause had no effect on the Decedent’s Trust [Trust B]. (Id. at 170-71 [11 Cal.Rptr.2d at 448].) In Scharlin, this Court evaluated the no contest clause of that trust which had strikingly similar language to the No Contest Clause in question in these proceedings. This Court held that “As to Trust B, the clause in the original trust agreement controls.” (Id. at 171 [11 Cal.Rptr.2d at 448]; emphasis supplied.)

"[Respondent's] continuing effort to point to a purported absence of language expressly incorporating the general provisions of the Trust into the subtrusts created within the Trust is unsupported by any authority. To the contrary, as was the holding in Scharlin, it is clearly implied by the provisions of the Trust that the subtrusts are to be administered pursuant to the terms of the Trust in which they were created. To say that the election option of Article 4.02 (AA000023-25) is conditional language and only in the event that the surviving Trustor opts to take the election as described in Article 4.02 will the subtrusts be subject to the provisions of the underlying Trust defies logic.

* * *

This Court in Scharlin notes [ ] citing California First Bank v. Townsend (1981) 124 Cal.App.3d 922, 930 [177 Cal.Rptr. 723]: “In construing a trust instrument, the intent of the Trustor prevails and it must be ascertained from the whole of the trust instrument, not just separate parts of it.” (Scharlin, 9 Cal.App.4th at 168 [11 Cal.Rptr.2d 448].) By dissecting the Trust instrument to give it his own meaning, [Respondent] is ignoring the intent of the Trustors, of which Appellant is one. (AA000018.) Respondent has always intended the general provisions of the Trust to control the subtrusts and is certain that Lloyd felt the same way. (AA000143.) [Respondent] cannot trump this [intent] by simply repeating his mantra that “no contest clauses” are to be strictly construed. (See, e.g., RB p. 7.) Even with strict construction, as noted in the Opening Brief, the no contest clause was intended to be, and was in fact, made applicable to the subtrusts. (OB, p. 12; AA000035.)

Finally, [Respondent's] breathless attempts to evade Scharlin fail especially when one considers another Fourth District case, McIndoe v. Olivos (2005) 132 Cal.App.4th 483 [33 Cal.Rptr. 689].

In McIndoe, the appellate court stated: “The no contest clause was located in the ‘general provisions’ section of the trust document, which specified that all general provisions “apply to each trust established hereunder[.]” Thus, the trust document specified that the no contest clause applied to the entire trust estate, including the exempt trust and the survivor's trust. Significantly, the amendments to the survivor's trust ratified all terms and conditions of the original trust or left the original trust unchanged. Because the no contest clause of the original trust applied to all subtrusts, there was no need to add a no contest clause to the exempt trust.” (McIndoe, 132 Cal.App.4th at 488 [33 Cal.Rptr. 689, 692].)

Likewise, here, the no contest clause was contained in the general provisions section of the original trust. The original trust similarly stated that no contest clause of the Trust applies to “any provisions of the instrument” [emphasis added], which necessarily includes the subtrusts created by the same instrument. (AA000035.) Thus, as the McIndoe court observed, there was no need to add a no contest clauses in each of the subtrusts (McIndoe, 132 Cal.App.4th at 488 [33 Cal.Rptr. at 692]), as [Respondent] contrarily urges here."


Thursday, December 23, 2010

Book Review: Hitch-22: A Memoir by Christopher Hitchens (2010).

Despite "produc[ing] a thousand words a printable copy every day and sometimes more" (p. 350), Christopher Hitchens appears a reluctant writer of memoir.

He admits his reluctance upfront: "When I first formed the idea of writing some memoirs, I had the customary reservations about the whole conception being perhaps 'too soon'. Nothing dissolves this fusion of false modesty and natural reticence more swiftly than the blind realization that the project could become, at any moment, ruled out of the question as having been undertaken too 'late.'" (3.)

Hitchens does not entirely overcome his reticence because after reading Hitch-22: A Memoir does comes away not really knowing the man. For example, Hitchens provides almost zero explanation for his journey to atheism, or as he prefers, anti-theism. This omission surprises inasmuch as Hitchens is one of leaders of the so-called "New Atheism", following the publication of his recent bestseller, God Is Not Great and frequent debates with leading apologists including William Lane Craig. He does include a photo (immediately preceding page 309) with fellow "New Atheists", Richard Dawkins, Daniel Dennett and Sam Harris, but his caption is about as much as he says about the collaboration. There's a brief interlude at pages 330-331 about his public debates "once or twice every month" "with those whose pressing need it is to woo and to win the approval of supernatural beings" (330), i.e. Hitchens' creative, yet patronizing, way of saying theists. He writes:

"How ... I am asked, do I find meaning and purpose in life? How does a mere and gross materialist, with no expectation of a life to come, decide what, if anything, is worth caring about?

"Depending on my mood, I sometimes but not always refrain from point out what a breathtakingly insulting and patronizing question this is. ... Just as the answer to the latter question is: self-respect and the desire for respect to others... A life that partakes even a little of friendship, love, irony, humor, parenthood, literature, and music, and the courageto take part in battles for the liberation of others cannot be called 'meaningless' except if the person living it is also an existentialist and elects to call it so. It could be that all existence is a pointless joke, but it is not in fact possible to live one's everyday life as if this were so. Whereas if one sought to define meaninglessness and futility, the idea that a human life should be expended in the guilty, fearful self-obsessed propitiation of supernatural nonentities..but there, there. Enough." (330-31.)

That is not to say that the book ignores the people and places that have influenced his life. There's a strong doses of that, including chapters on his mother Yvonne who unfortunately committed suicide, and his somewhat distant father whom he called, "The Commander". However, Hitchens does not allow the book to indulge in extended self-introspection or self-analysis. This lack is especially odd when one considers Hitchens' closing sentiment: "After various past allegiances, I have come to believe that Marx was rightest of all when he recommended continual doubt and self-criticism." (422). Hitchens includes one chapter called, Something of Myself, which is exactly that--only "something".

Nevertheless, despite the reluctance to expose the world to his inner thoughts, the world is the richer to see a true man of letters whipping words into a delicacy of prose.

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