Theory v. Practice.

In theory, attorneys are not supposed to use opening statements to "argue" their cases.

In practice, they do so all the time.

Take today's high-profile Michael Jackson case, for example. According to thesmokinggun.com, Mr. Jackson's attorney started his statement with the following: "I'm here to tell you these charges are fictitious and bogus." He further argued: "These charges are fake, silly, ridiculous."
(HT: thesmokinggun.com.)

Sounds like argument to me, and a thesaurus exercise.

Feigning Sincerity, Part II.

A former Hollywood insider wrote yesterday an expose of sorts regarding his former industry. There were some gems:

"The operating principle, I learned, was never to say no to someone's face. And because both sides of the transaction assumed that rank insincerity was baseline behavior, everyone also understood that 'yes' could just as easily mean 'pass.' No wonder Eisner told Larry King he'd rehire Ovitz in a heartbeat, even as he tried to offload him to Sony.

"Everything in Hollywood is always fabulous. ('Fantastic' is Gov. Arnold Schwarzenegger's favorite word.) If you say a casual 'How are you?' to someone in the industry, the minimally acceptable reply is, 'Excellent.' I have also heard, 'Perfect.' And from an agent's assistant, on the phone, I once heard this: 'I can't imagine how I could be any better.'" (M. Kaplan, "Love Ya. Loved the Pitch. We'll Do Lunch. I'll Call.", L.A. Times, February 25, 2005; emphases added.)

Amusing stuff. However, I'm not so sure these traits are unique to Hollywood moguls. Next to "fantastic" or "fabulous", I cannot count the number of times I have heard, "I'm so excited about....", "It's incredibly exciting", or "We're very excited...." Try "enthused" or something else if you are not truly excited, please.

Perfect!

Lawyer Jokes, Part II.

A doctor told his patient that she had only six months to live."Is there anything I can do?" the patient pleaded."Marry a lawyer," the doctor advised. "It will be the longest six months of your life."

(S. Harvey, "How Many Lawyers Does It Take to Give State Motion Sickness?", L.A. Times, February 25, 2005.)

Litigation Unprivileged.

"It's a free country". A familiar refrain indeed. In litigation, it's usually even freer. California law provides a litigation privilege (Cal. Civ. Code Section 47.) The privilege generally immunizes what attorneys and parties say in the course of a lawsuit--usually directed at their opponents. It's designed to promote open communication and zealous advocacy.

In other words, what might be slanderous if said outside of court is immune from such liability inside. A California Court of Appeal opinion filed February 22, 2005, explores limits to the litigation privilege. (Wentland v. Wass, Case No. C045239; read it here.)

In sum, the Wentland court addressed a settlement agreement that required parties not to make certain accusations against Charles Wentland. If breached, Wentland would be entitled to $30,000 and a letter of apology.

In a later lawsuit, parties to the settlement agreement authorized a declaration (statement under oath filed in court), which accused Wentland of wrongdoing. Wentland sued, saying that the declaration violated the nondisparagement settlement agreement.

The trial court found the litigation privilege applied to the declaration, and through out the claim for breach of contract based on the declaration's submission. Wentland appealed, arguing that the litigation privilege does not apply to an action for breach of contract. The Court of Appeal agreed with Wentland and reversed.

The appellate court looked to whether the action would further the underlying policies of the privilege. In this breach of contract case, the Wentland court held that the privilege's purposes are not furthered by application Wentland's claim for breach of contract. The court reasoned that application of the privilege would hinder the purpose of the settlement agreement and invite further, outside litigation. Accordingly, the appellate court held that the litigation privilege should not apply.

Book Reviews, Part IV (Showtime).

San Clemente Presbyterian Church's senior pastor Tod Bolsinger has produced another book, Showtime: Living Down Hypocrisy by Living Out the Faith (2004). Showtime follows up his work, It Takes a Church to Raise a Christian (2004). (His blog is here.)

I don't think it's a coincidence these books are juxtaposed. When embarrassing scandals in the church have splashed across the media, I heard those in the community downplay these events with sentiments such as, "Well, as long as I keep my camp clean, that's all that matters". Not so fast.

Bolsinger makes at least two basic points in Showtime that undercut this type of thinking. First, Bolsinger grasps the corrosive effect that hypocrisy works on the church--internally and externally. The book is offered as an antidote. For example, he discusses Peter's litany of virtues in 2 Peter 1:5-8. Bolsinger observes that the list begins with faith and ends with love, which he says emphasizes their importance and order (like building blocks). Faith is the foundation, and love the ultimate goal. (vv. 5, 7.) Keeping these virtues in mind and seeking to implement them, Bolsinger reasons, will help eradicate hypocrisy. He provides a couple of compelling examples of believers who "walk the talk", including members of his church, who do not act out of self-aggrandizement or acclaim.

Second, Bolsinger rails against "lone ranger" Christians. He argues that the church is interconnected and imperative. Hypocrisy negatively impacts it; but, the church can also remedy disconnects between faith and practice. The community can help each other in this process of becoming more Christ-like, he posits.

In a recent interview with Mark D. Roberts about Showtime, Bolsinger said (quoting theologian Hans Küng) that "lay people are experts in living the Christian life". He asserts his target audience is "from start to finish ... 'everyday believers.'" The book is very accessible; it is not a dense theological study. On the flipside, the book is somewhat breezy and basic. Even though the book was brief, it took a little too much time getting to its core message; it did not build substantial momentum until several chapters into the text.

Another Picketing Case.

What's the deal with picketing cases? They seem to generate more than their fair share of published opinions. Here's yet another to consider. (Krell v. Gray, Case No. B169593, February 16, 2005; read it here.) (For prior posts dealing with picketing cases, see January 31, 2005, and February 12, 2005.)

1. Background Facts.

Fleming Gray served as a substitute teacher at Pacoima Middle School. Assistant principal Robert Krell reprimanded Gray for refusing to allow a student to use the restroom during class. Gray won her grievance against this action, but assented to stop teaching at the school. However, she did not stop there.

Gray then picketed the school with signs and leaflets criticizing Krell. The leaflets also accused individual students of calling Gray racist names. At about the same time, Krell began receiving daily death threats.

2. Trial Court Grant of Injunction.

As a result, Krell obtained an injunction prohibiting Gray from harassing him. The order required her to stay at least 100 yards away from Krell and remove Krell's name from picket signs and leaflets.

3. Appellate Court Reversal for Overly Broad Injunction.

The Court of Appeal reversed. The Krell court observed that Code of Civil Procedure Section 527.6 permits a person who has suffered harassment to seek injunctive relief. The appellate court further found substantial evidence that Gray committed acts that seriously alarmed, annoyed or harassed Krell and the students. Gray's acts were not constitutionally protected speech because they conflicted with the state interest of safeguarding schools for students and staff. Therefore, the appellate court ruled that Gray's acts were subject to injunctive relief.

However, the Court of Appeal did not believe that the injunction comported with "reasonable time, place and manner restrictions", as required. In particular, the Krell court held that the blanket prohibition against using Krell's name was overly broad. The restriction requiring Gray to stay at least 100 yards from Krell was unreasonable because there was no evidence that Gray, as a "lone picketer," materially disrupted classwork. As a result, the matter was remanded for the trial court to reconsider the scope of injunctive relief to be ordered.

4. Reflections.

My hypothesis as to why picketing cases seem to get into appellate courts is that they usually implicate constitutional concerns and involve highly motivated litigant(s). One interesting factor absent here, but present in another Section 527.6 injunction case (involving the picketer of the landlord and his church [February 12, 2005, post]) is a special to motion to strike as a SLAPP suit. Especially in light of the broad standard employed in that case as to what constitutes a public issue, it would seem that an anti-SLAPP motion might have been appropriate also in this case at least with respect to free-speech activities (not any threats or defamation).

Not Quite the Ultimate Sanction, But Close.

On February 8 and 9, 2005, we discussed what seemed to be the ultimate sanction: a case in which a lawyer (in no particular order): (a) lost the case, (b) lost her job, (c) got reported to the State Bar; (d) received a public reprimand; (e) was ordered to pay $5,000 in fines and (f) was compelled to attend ethics training along with her entire (former) law firm. Ouch.

We do have a contender, though.

Just a few days ago, a California Court of Appeal, sitting in Santa Ana, California, slammed Home Depot and its law firm, Pillsbury Winthrop. (Sporn v. Home Depot USA, Inc., Case No. G033775, February 17, 2005; read it here.)

Plaintiff Alan Sporn sued Home Depot and “John Doe”. The gist of Mr. Sporn's complaint was that "John Doe" used Sporn's identity to obtain credit from Home Depot. He also alleged that the company made monthly credit inquiries of Equifax, a credit reporting agency, and because of these frequent inquiries, he was unable to obtain “the best rates of interest.” As a result of defendant’s conduct, plaintiff claimed he suffered physical and emotional distress, personal and business embarrassment, lost business opportunities, and lost creditworthiness. For each of his five causes of action he prayed for $5,000,000 in general damages and $10,000,000 in punitive damages.

Defendant’s designated agent for service of process was served on August 23. On September 30, Mr. Sporn's lawyer sent a letter to Home Depot, in care of its authorized agent, enclosing a copy of the previously served summons. She wrote that the summons had been served on August 23; although it had been due on September 23, no responsive pleading had been received; and unless such a pleading was received by October 7, she would seek the entry of defendant’s default. No response. On October 10, Mr. Sporn's lawyer filed a request for entry of default, serving a copy on defendant.

The following July 15, the trial court conducted a default prove-up hearing, and after hearing evidence, issued a default judgment in favor of plaintiff for $930,000.

Nearly eight (8) months later, on March 10, after learning of an effort to enforce the judgment, Home Depot made its first appearance by way of an emergency application for a stay. The court denied it. On March 11, defendant filed a motion to set aside the default and default judgment and recall an order to collect the judgment.

Home Depot conceded proper service of the summons and complaint and the request for entry of default, but places the blame for its failure to take any action for well over a year on Mr. Sporn's attorney. Home Depot accused Johnson of extrinsic fraud and fraud on the court.

The motion to set aside the default and the default judgment was denied on March 22. The order denying the motion included the following findings: (1) Home Depot was properly served with the summons and complaint and with the request to enter default; (2) more than six months had elapsed from the date of entry of judgment until defendant filed its motion to vacate the judgment; (3) plaintiff had done nothing to prevent defendant from responding to the complaint; and (4) plaintiff committed no extrinsic fraud “either in connection with defendant’s failure to respond to the complaint or defendant’s failure to timely move for relief from the default.

The Court of Appeal was unimpressed with the appeal. In short, the appellate court noted that defaulted parties may be relieved from a judgment entered against it through its “mistake, inadvertence, surprise or excusable neglect.” (Code Civ. Proc. § 473, subd. (b).) However, a motion under this section must be made within six (6) months from the entry of the default or the default judgment.

The Sporn court rejected the appeal, finding that Home Depot "obviously ... cannot avail itself of relief under this statute" because it was outside the maximum period of time. Its motion was well after the six month outer limit.

Moreover, the Court of Appeal rejected Home Depot's attempt "to escape the results of its own carelessness by an offensive characterization of plaintiff’s conduct. We are less than impressed by defendant’s accusations that plaintiff 'obtained [the judgment] by stealth,' was 'laying [sic] in the weeds,' 'obtained the default judgment from the trial court through his and his attorney’s acts and omissions which constituted extrinsic fraud,' concealed facts from the court, and engaged in 'improper tactics.' The record does not support these characterizations. Plaintiff properly served defendant, extended a commendable courtesy by advising defendant of the default and unilaterally extending the time to respond, and, as required, properly notified defendant of the request to enter its default."

In addition to Home Depot's untimeliness, the Sporn court observed, "[a]n obvious gap appears in the evidence submitted in support of the motion to vacate: there is no statement that the papers were lost, stolen, forwarded to the wrong person, or eaten by the dog. Nothing in the record discloses what caused defendant to ignore the summons and complaint, the letter from plaintiff’s lawyer, the request to enter default, and the letter from GE. No excuse, satisfactory or otherwise, was presented."

The hits kept on coming, as follows: "Their apparent belief that they can persuade this court to somehow make up for the consequences of their conduct by the excessive use of noxious characterizations to describe the conduct of plaintiff and his lawyer is mistaken and offensive."

Finally, the coup de grace: the Court of Appeal remanded to the trial court for an award of sanctions for Home Depot's frivolous appeal. "The utter lack of merit renders the appeal frivolous and, combined with the unnecessary attacks directed at plaintiff and his lawyers, calls for an award of sanctions in favor of plaintiff. The matter is remanded to the trial court to determine the reasonable value of fees and expenses incurred by plaintiff in resisting this appeal." Again, ouch.

Who Owns Your Name?

Today I saw a concert advertisement. The fine print caught my attention; it read:

"Barry Manilow is a registered trademark of Hastings, Clayton & Tucker, Inc."

Who owns your name? If you still do, would you sell it? If so, at what price?

It's a Matter of Interpretation, Part VIII.

The City of Anaheim's pending lawsuit against the Angels' name change to the Los Angeles Angels of Anaheim (translated, The Angels Angels of Anaheim) has implicated some intriguing issues of contractual interpretation.

On the one hand, the City asserts that this change violates the spirit and intent, if not the letter, of the lease between the parties requiring the baseball team to "include the name Anaheim therein".

On the other hand, the Angels contend that there has been no breach because the name "Anaheim" is contained in their extended name.

Although the mainstream media (MSM) reports have not provided any legal authorities or principles to help readers navigate this ongoing dispute, here are some basic rules of interpretation employed in California law.

According to California Civil Code 1636, "A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful." (Emphasis supplied.) At first blush, it looks great for the City.

However, consider: "The modern approach ... is to avoid the terminology of 'intention,' and to look for expressed intent, under an objective standard. (1 B. Witkin, Summary of California Law (9th ed. (1990)) "Contracts", § 684, p. 617, citing Brant v. California Dairies (1935) 4 C.2d 128, 133 [48 P.2d 13]; Blumenfeld v. R. H. Macy & Co. (1979) 92 C.A.3d 38, 46, 154 C.R. 652 (same).)

Similarly, "the rules of interpretation of written contracts are for the purpose of ascertaining the meaning of the words used therein; evidence cannot be admitted to show intention independent of the instrument." (Witkin, supra, and Barnhart Aircraft v. Preston (1931) 212 Cal. 19, 22 [297 P. 20].) The Angels probably would cheer this authority. But, the analysis does not end there.

The Civil Code adds more. Where the contractual terms are ambiguous or uncertain, they must be interpreted "in the sense in which the promisor believed, at the time of making it, that the promisee understood it." As a result, this section allows courts to consider testimony of one of the parties as to his belief or understanding, i.e. intent. (Kusmark v. Montgomery Ward & Co.(1967) 249 C.A.2d 585, 591 [57 C.R. 678]; and Western Camps v. Riverway Ranch Enterprises (1977) 70 C.A.3d 714, 725 [138 C.R. 918] (same).)

With these principles seemingly leading in different directions, the result cannot be predicted with precision. So far, the court has taken a strict, if not formalistic, approach to the text of the lease, finding that since the word "Anaheim" is in the name somewhere, the team is in strict compliance. However, a trial looms--so stay tuned.

Movie Review: "Constantine".

What happens when "The Matrix" meets "The Exorcist"? Keanu Reeves might appear.

That's not too bad, if you're a fan of either or both of these successful movies.

Opening this weekend, "Constantine" (2005) brings together the sci-fi action and messianic/religious imagery displayed in "The Matrix" (especially part III, "Revolutions") with the dramatic (if not horrifying) punch of exorcism explored in, you guessed it, "The Exorcist".

1. Synopsis.

"Constantine" is the last name of Reeves' character, John. (Constantine is also the name of an emperor who incorporated Christianity into the Roman Empire by fiat--coincidence?). John Constantine has the ability to see angels and demons roaming the earth, trying to "influence" humans for their respective camps. Constantine battles demons in an effort to buy or work his way out of his own banishment to hell for his attempted suicide.

Constantine's efforts become more altruistic when he encounters a Los Angeles police detective Angela (another coincidental character name?), played by Rachel Weisz. When her twin sister dies, Constantine gets involved. In so doing, they uncover an otherworldly battle, that leads to a quite unique climax involving Lucifer, and Gabriel (an Angel).

2. Reactions.

With respect to its permeating religiosity, I think most Christians will find it generally positive. In fact, there are intelligent distinctions drawn between saving belief and mere knowledge. In addition, the movie discusses whether salvation may be earned. As a constant theme, "Constantine" commits to a plane of existence that is not merely material.

Evaluating its movie-making aspects, the film moves briskly (for the most part) and keeps one's attention. There is a character or two that could have been excised from the film (along with their scenes), such as "Midnight", a denizen of a cliche underground club, and a bizarre priest. Nevertheless, the acting is mostly creditable, the action interesting and creative, and the direction nicely done. In all, Constantine is highly entertaining.

Finally, I have to comment on the movie's overt anti-smoking message. In addition to showing X-rays of Constantine's cancerous lungs, the script even includes these memorable lines from Satan to Constantine: "Go ahead and smoke, I own stock". This exchange gives one a sense of the unusual (if not whimsical) portrayal of the Devil here, showing up in a white leisure suit with bloody bare feet, and dispensing some odd observations.

"Constantine" receives an "A-".

It's a Matter of Interpretation, Part VII.

Today's editorial, "Angels on the Docket", in the Orange County Register, revisits the interpretive issues at play with the City of Anaheim's lawsuit against the Angels' name change to the Los Angeles Angels of Anaheim (discussed here as part of our series). Let's recap: the Angels' lease requires that the team "include the name Anaheim therein." The Angels argue that the new name complies with the plain language of the lease; after all, "Anaheim" is there. Conversely, the City contends that this new name does not comport with intent of the parties or the spirit of text.

The City's preliminary efforts to stop the name change without a trial were rebuffed. However, a trial remains. The City Council has just voted to go forward with the suit and has employed some leading attorneys in Orange County including an acquaintance of mine, Tom Malcolm of Jones, Day. In addition, the City has engaged Andrew Guilford. Mr. Guilford has wasted no time weighing in: "'[I]f the team changed its name to "the Angels formerly of Anaheim," or "the Angels from Bush-League Anaheim," everyone would view the renaming as a breach because it clearly would violate the intent of the contract.'" (Orange County Register, "Angels on the Docket, February 17, 2005; emphasis added.)

Endorsing the City's position, the Register editorial further referenced a "recent declaration from Tony Tavares, who negotiated the deal on behalf of former owner Disney." (Id.) According to the declaration, "The city negotiator made clear on several occasions during the initial phase of the negotiations that having the team named 'Anaheim' so as to identify the team with the city was a threshold issue for the city negotiator; I and other Disney representatives all agreed from the early stages that this would be done." (Id.)

Mr. Guilford asserts that "the phrase 'include the name Anaheim therein[]' was written to give Disney - owner of the Mighty Ducks of Anaheim - certain latitude in naming the team. But no one could have reasonably expected an owner to come along and have two city names on the same team. 'Do you think we spent $20 million to be second fiddle to L.A.?'" (Id.) These are compelling points if intent of the parties is the touchstone of the analysis. As we explored with some quotations to the Scalia Dissents book, not all legal scholars agree that intent governs.

Returning to the editorial, it further reads: "An important principle is at stake here: That one should honor the terms of a contract. When new Angels owner Arte Moreno changed the name of the baseball team from the Anaheim Angels to the Los Angeles Angels of Anaheim, he violated the obvious intent of the stadium lease contract then-team owner Disney and the city signed in 1996." (Id.; emphases added.) This conclusion, of course, begs the crucial question: what are the terms of the contract, as they are to be interpreted by the court.

Can it be doubted that the rules of interpretation are crucial, whether they are used to intepret legal texts or biblical ones?

Enron Ethics, Another Oxymoron?, Part II.

"Values are incredibly important to the fiber of this company [Enron]."

--Ken Lay quoted in The Smartest Guys in the Room: The Amazing Rise and Scandalous Fall of Enron (2003), by Bethany McLean and Peter Elkind (p. 353).

In my post on February 14, 2005, I wrote about Enron's statement of values, known by the acronym, "R.I.C.E." Here's the full version:

"RESPECT: We treat others as we would like to be treated ourselves. We do not tolerate abusive or disrespectful treatment. Ruthlessness, callousness and arrogance don't belong here.

"INTEGRITY: We work with customers and prospects openly, honestly, and sincerely. When we say we will do something, we will do it; when we say we cannot or will not do something, then we won't do it.

"COMMUNICATION: We have an obligation to communicate. Here, we take the time to talk with one another...and to listen. We believe that information is meant to move and that information moves people.

"EXCELLENCE: We are satisfied with nothing less than the very best in everything we do. We will continue to raise the bar for everyone. The great fun here will be for all of us to discover just how good we can really be."

--Enron's 1998 Annual Report (reprinted in Smartest Guys in the Room, p. xix.)

The law has an expression: res ipsa loquitur, which means, "The thing speaks for itself".

I have done considerable reading on the Enron debacle, including the following books:
Pipe Dreams: Greed, Ego and the Death of Enron, Robert Bryce (2002); Anatomy of Greed: The Unshredded Truth from an Enron Insider, Brian Cruver (2002); House of Cards: Confessions of an Enron Executive, Lynn Brewer with Matthew Scott Hansen (2002); What Went Wrong at Enron, Peter C. Fusaro and Ross M. Miller (2002); Power Failure, Mimi Swartz with Sherron Watkins (2003); and The Smartest Guys in the Room: The Amazing Rise and Scandalous Fall of Enron, Bethany McLean and Peter Elkind (2003).

For those interested in reading more on this smorgasbord of business ethics issues, each of these books provides a somewhat unique angle to the story. However, let me highlight, Smartest Guys and Power Failure, if you are only going to read two.

Book Reviews, Part III (Blog).

Here's another review of Blog: Understanding the Information Reformation That's Changing Your World (2005) by Hugh Hewitt. (Disclosure: I'll admit a potential bias; I attend the same church as Mr. Hewitt and launched my own blog--the one you're reading--in part due to his influence.)

Perhaps the most common question a blogger receives from a nonblogger is, "What is a blog?" Instead of just providing the definition, consider handing or, at the very least, recommending Blog to such questioners. The book provides the quintessential definition: "Blog is short for weblog. Log means 'diary', as in a captain's log on a ship. Weblog means a diary of sorts maintained on the internet by one or more regular contributors." (Blog, p. ix.)

Better still, this timely book goes far beyond the mere definition to provide history, context, influence, examples, present and future uses of blogs, among other things.

I believe the book's greatest innovation is its comparison of the blogosphere with the Protestant Reformation. (Chapter 2; note: my theological training may have influenced this conclusion.) Humanly speaking, what loosed both the Reformation and the blogosphere was the "democritization" of information. In the case of the Reformation, the printing press and wide dissemination of scriptures in common language empowered the masses. By the same token, the breakdown of barriers to publish and distribute information and ideas, such as through the 'net and blogs, has a similar empowering effect.

Mr. Hewitt warmly references an Orange County basketball coach, Jerry Tardie. He noted that Coach Tardie "speaks in coach talk, the repetitive, specific, motivational, and tutorial style that all good coaches use." (p. xiv.) Mr. Hewitt's writing style in Blog does not stray far from this description. As a result, the book assumes a "cheerleading" cant. This approach leads Mr. Hewitt to emphasize the positives, and deemphasize or ignore the negatives that blogs may present.

While Mr. Hewitt does make a passing reference to misuses of the web/blogs for terrorist purposes, he does not duly address some other areas of concern. For example, the lack of any gatekeepers, such as editors, is both a blessing and a curse. It's a blessing for the reasons stated above. Elites or oligarchies can no longer dictate or influence opinions by controlling or manipulating information flows. Conversely, information or text can be immediately published without any vetting or questioning. Moreover, as recent examples attest, there is no known or commonly accepted ethical standards to govern blogs which can lead to some deleterious effects. (This is not to say that newspapers or other media are immune to these problems either).

In any event, this book is a fine read and well-worth the time and dime for bloggers and nonbloggers.

Enron Ethics, Another Oxymoron?

"Enron had one of the best codes of ethics. They posted it. They made a big deal about it. Only they didn't really mean it."
--Michael Josephson, a Los Angeles-based ethicist (and former law professor).

Mr. Josephson is right. Enron had a flowering, lofty statement of values. Here it is: "R.I.C.E.", standing for "respect, integrity, communication and excellence". (Emphases supplied.) Of course, the problem was that it did not translate into meaningful action.

One of the commonly suggested antidotes to the corporate ethical scandals has been more ethical education. The pitch goes like this: if the business schools only taught ethics then they would have acted ethically. I don't think the answer is merely education but inclination. I'm sure those at the top of the Enron pyramid had plenty of ethical instruction. They hailed the U.S.'s finest business schools, such as Harvard and Northwestern. Their lapses did not result from not knowing the right thing to do; it was not choosing the right thing to do.

Shoveling Smoke.

"Lawyers spend a great deal of their time shoveling smoke".
--Justice Oliver Wendell Holmes, Jr.

When I got to "shoveling", I thought Justice Holmes might be going in a different direction. In any event, his comment appears more akin to the simile, "like eating soup with a fork".

A lawyer colleague put his finger on this phenomenon when he said that one of the most difficult aspects of his litigation job was that while he was working to build something for his client, the opposition was doing everything in his or her power to disassemble it. While this may present frustrations, I believe the "adversarial" process is probably the best system to ensure the court has the tools to make the best possible decision.

A Case of Law and Religion.

I'll admit at the outset that this post reaches for a law and religion intersection in a case decided February 4, 2005. (Read it here.) Work with me though; the payoff is there.

Richard E. Thomas owns many rental properties in California. He also attends church, where he is a deacon. One of his former tenants picketed his home and his church. Mr. Thomas did not appreciate the attention, and he sued. The lawsuit asserted that the former tenant, John Quintero (among others) harassed him and caused him "extreme embarrassment and severe emotional distress".

Defendant Quintero brought a special motion to strike under California's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. In short, this statute generally empowers courts to stop lawsuits that are designed to prevent free speech or government petitioning activities.
The trial court denied the motion to strike. Then, another superior court judge denied Plaintiff Thomas' petition for an injunction brought under Code of Civil Procedure Section 527.6 (a court order prohibiting harassment).

Quintero appealed the rejection of his motion to strike. He won. The court of appeal held that the anti-SLAPP law did apply to Quintero's action. Accordingly, the appellate court directed the trial court to enter an order granting the special motion to strike and consider an award of attorneys' fees to Quintero.

In sum, the court of appeal ruled that the anti-SLAPP law applies to Section 527.6 actions. Even though no court had previously addressed the issue, the opinion explained that the anti-SLAPP law applies to "petitions". Since some types of cases are exempted from the anti-SLAPP law, and anti-harassment suits are not listed among those, "that old saw of statutory construction, 'expressio unius est exclusion alterius'", applied, according to the appellate court. This maxim of interpretation provides that if exemptions are specified in a statute, additional exemptions will not be inferred absent clear legislative intent.

Further, applying the anti-SLAPP law to cases brought under the civil harassment procedure comports with Section 527.6's goals of protecting against harassment and providing an expedited remedy, the court of appeal reasoned.

Turning to the facts, the appellate court concluded that the picketing, which involved distribution of flyers explaining the picketers' side of their disputes with the landlord, constituted First Amendment-protected activity in connection with a public issue or an issue of public interest. The picketers made "a genuine effort to engage the members of Thomas's congregation in discussing and finding a solution to the disputes", according to the Thomas court.

Because Thomas's suit implicated constitutional rights of Defendant Quintero, the burden was Plaintiff Thomas to show a likelihood of prevailing on the merits (under the anti-SLAPP statute). The appellate court concluded that no such showing was made because the evidence did not show that Quintero had engaged in or threatened violence, or had engaged in a course of unlawful conduct.

The case especially interests me because it demonstrates one of the hottest areas of California law now: the anti-SLAPP statute. In turn, the anti-SLAPP law implicates Constitutional protections, such as First Amendment freedoms. On top of all of that, this case allows us to revisit the topic of statutory interpretation covered in numerous posts in the series, "It's a Matter of Interpretation".

(Hat Tip: Metropolitan News-Enterprise and K. Ofgang.)

A Lawyer Who Eschews Litigation: Another Oxymoron?

The public perception of lawyers, especially trial lawyers, is that of overly zealous (if not frothing) advocates fomenting litigation without any regard for consequences.

As a counterbalance, consider these ruminations of a highly experienced trial lawyer at BeldarBlog: "Yes, there have been times when litigation has been a legitimate tool in advancing important social policies. The paradigmatic example was the civil rights litigation of the 1950s and 1960s. But in general, as a conservative (and despite being a trial lawyer), I'm very leery of trying to accomplish via civil lawsuits what you can't get passed by your state legislature or the Congress. For all their obvious flaws, those entities have tools to make value judgments and policy decisions that trial and appellate courts will always lack. And it's their main job. Because courts, by contrast, are supposed to decide the respective rights of the specific parties before them — albeit with sensitivity to the precedents they're setting that will affect others who are similarly situated — courts not infrequently blow it when they try to set broad social policies. And they're less responsive and accountable to the public than are legislators. ...

"Were a [client] to come to me, as a trial lawyer, asking for representation ... before I ever agreed to pick up my sword for him or her in my role as an advocate-for-hire, I'd first spend some time in my role as counselor-in-private. I'd spend some time talking with my would-be client about flaws and limitations inherent in the lawsuit process. And in particular, I'd stress to my client that courts are particularly, frighteningly efficient tools for stripping away litigants' dignity. It's sometimes for better and sometimes for worse, but in every lawsuit, there's a trained professional whose job is to throw rotten eggs at you, and he also gets to root around in your private affairs to look for more rotten eggs to throw.

"In his [or her] role as counselor, it's a lawyer's duty to not only answer the question of 'Can we win in court?' but to also ask, and get an informed answer, to the question of 'Should we even try?' I can postulate some extreme circumstances when the answer to that question on behalf of a [client] might be 'Yes, we should,' and when I therefore might take on such a client and case." (Hat tip: BeldarBlog.)

A Twist On The Expression, "Litigation Lottery".

Imagine a lottery--without a winner. Unappealing? It was enough for one entrant to sue.

Ben Waldrep had a house with an ocean-view in Manhattan Beach, California. As an alternative to simply selling, he launched an contest which required a $195 entry fee and an essay on "Why I Want to Live in Manhattan Beach, Calif." The grand prize: Waldrep's home. (B. Pool, "Essay Flap's Plot Takes Strange Turn", Los Angeles Times, February 10, 2005.)

Nearly 2000 people entered the contest. When Waldrep didn't move out of his house and the supposed winner didn't claim the prize, one unhappy essayist filed a lawsuit in Los Angeles Superior Court.

Last week, a Los Angeles jury decided Waldrep had committed fraud and ordered him to return the entry fees, plus interest, to the essayists. On top of these "compensatory" damages, the jury awarded "punitive damages" a few days ago. However, according to the Times, the jurors agreed that the contestants should additionally split between them the approximately $1 million. "But in a mix-up, jurors inadvertently awarded the 1,812 essayists $1 million each." (Id.) This computed to a $1.8-billion punitive damage award.

The jurors tried to return to the courtroom to rectify it, but "learned they were too late: They had been dismissed." (Id.) In any event, it appears that the apparent mistake will be brought to the Court's attention through counsel.

The Ultimate Sanction, Part II.

As noted yesterday, the federal judge who dispensed the sanctions was disturbed, in part, by the defense's efforts to drive up the plaintiff's (and his counsel's) expenses through frivolous and bad-faith actions. An Irvine, California attorney was on the receiving end of these tactics: Maureen Graves. Ms. Graves estimated that Lozano Smith's client, Bret Harte School District, spent nearly $500,000 on a case that she once had been willing to settle for $8,000. Ms. Graves works alone out of her garage, and took the case of special education student Robert Moser for no hourly fee. Moser and his parents requested a hearing in 1997 because they felt Bret Harte district ignored the high school student's medical condition and failed to properly assess his learning difficulties. The case ended up in federal court and lasted more than seven (7) years. (Hat tip: Parent Advocates.)

The Ultimate Sanction.

Evan Schaeffer at Notes from the (Legal) Underground is periodically cataloging bad things that are law-related, such as the latest entry: getting yelled at by a law professor. (See,e.g., February 7, 2005.)

Perhaps Mr. Schaeffer should add getting ordered by a federal judge to get ethics training (on top of a huge fine). An entire law firm was ordered to receive ethics training, among other things. (Order is available to Westlaw subscribers at 2005 WL 165381 [Moser v. Bret Harte Union High School Dist.].)

Pages 82 and 83 of the order conclude that the law firm of Lozano Smith and its client engaged "in bad faith litigation tactics through their systematic and repeated misstatements of the record, frivolous objections, and repeated mischaracterizations of the law." The Court (Judge Oliver W. Wanger) ordered: 1) the individual attorney responsible for the case (from Lozano Smith) to pay the plaintiff $5,000 and take 20 hours of ethics training; 2) Lozano Smith was separately sanctioned $5,000 and its attorneys and shareholders ordered to take 6 hours of ethics training; 3) the client was sanctioned; and 4) the order was sent to the California State Bar.

According to the Monterey County Herald, Lou Lozano of the firm reacted to the ruling, as follows: "It's really horrible. It's not exactly what you would expect." Mr. Lozano continued: "We believe we practice law at the highest ethical level, not what is minimally required."

Judge Wanger described the handling of the case by Lozano Smith and its lead attorney, Elaine Yama, as "a concerted effort to distort, if not outright deceive, the court when shaping the court's view of both the record and applicable law in the case. By consistently presenting untruths and half-truths, Defendant and its counsel obstructed the fair, just, and expeditious resolution of the proceedings. These actions were undertaken in violation of, and with reckless disregard for counsel's duties to the court. When evaluated as a whole, the actions of counsel and the District amount to bad faith and are sanctionable."

The upbraiding continued: "[T]here is no way to interpret Lozano Smith's submissions of multiple misleading pleadings under the signature of no less than three attorneys as anything other than a bad faith attempt to mislead the Court about the facts and the law to gain the advantage of prevailing without regard to the true facts and accurate statements of the law. Given Lozano Smith's steadfast refusal to address any of Plaintiff's repeated complaints about its malfeasance (other than to flatly deny it ...), no other conclusion can be drawn but that its actions were in bad faith to harass the Plaintiff and to obstruct the ascertainment of truth in this case."

The Fresno Bee reports (reg. req'd) that a School District has severed ties with Lozano Smith as a result of the order. The client had paid the firm more than $3 million over the past four years. In addition, Ms. Yama is no longer with the firm.

Tomorrow, we will provide the Orange County connection to this case.

(Hat tips: The Southern California Law Blog, and Courthouse News On Point.)

Real Genius.

I'm not referring to the (underrated) movie starring Val Kilmer (1983). Rather, I'm speaking of Mark Burnett, the impresario behind "The Apprentice" and "Survivor". This guy has got it made.

Check out the following story: "Last fall, the prolific producer [Burnett] was given the right to buy 2.5 million Martha Stewart Living shares at $12.59 each. In the last seven months, the company's shares have nearly tripled on speculation that the company would rebound once Stewart put her legal woes behind her." (M. James, "Stewart Will Go From 'You're Released' to 'You're Hired' With TV Spinoff Deal", Los Angeles Times, February 3, 2005, p. C10.)

Let's see, what might provide a vehicle to help Stewart and her company rebound? Hmmn, how about not one, but two, well-produced television shows featuring Martha Stewart? (Note: the Times piece noted the announcement of a second show featuring Ms. Stewart, this one entitled, "The Apprentice: Martha Stewart"). Sounds like a plan!

Self-Help Books: An Oxymoron?

I think it was George Carlin who said that "self-help book" was an oxymoron. If it's truly self-help, then why do you need a book? And, if you used a book, how can it be self-help?

In any event, when is the last time you read a "self-help" book that counseled bearing a grudge? Well, you're in for a treat. Here's one from Donald Trump's recent book, How to Get Rich (2004):

"Sometimes you have to hold a grudge". (p. 168.) Mr. Trump provided an illustration about former Governor Mario Cuomo. After supporting Mr. Cuomo for years, Mr. Trump asked for a favor (after Governor Cuomo was out of office). He was rebuffed. "My screaming was so loud that two or three people came in from adjoining offices and asked who I was screaming at. I told them it was Mario Cuomo, a total stiff, a lousy governor, and a disloyal former friend. Now whenever I see Mario at a dinner, I refuse to acknowledge him, talk to him, or even look at him." (p. 166.)

Well, at least it's unconventional advice.

Fun with Refunds.

Would you be surprised if Congress passed a law requiring them to forfeit their pay for failing to show for work (unless there is an illness)? Check out the following federal statute:

"The Secretary of the Senate and the Chief Administrative Officer of the House of Representatives . . . shall deduct from the monthly payments (or other periodic payments authorized by law) of each Member or Delegate the amount of his salary for each day that he has been absent from the Senate or House, respectively, unless such Member or Delegate assigns as the reason for such absence the sickness of himself or of some member of his family." (2 U.S.C. § 39.)

According to a new National Taxpayers Union study, the Top 5 Congressional absentees were John Kerry (146 days missed, $90,933 overpaid), Richard Gephardt (131, $81,363), John Edwards (102, $63,543), Joe Lieberman (63, $38,829), and Luis Gutierrez (42, $26,198). (Hat tip: TaxProf Blog.)

It's a Matter of Interpretation, Part VI.

Further explaining Justice Antonin Scalia's approach to interpreting legal texts, Kevin A. Ring writes in Scalia Dissents (2004):

"[T]he Court should ensure the meaning makes sense within the context of the law or code of which it is a part." (p. 24; emphasis added.)

Here is yet another intersection of law and theology in the world of textual interpretation. Many theologians actually elevate "context" to the governing principle of hermeneutics or biblical interpretation. I have heard it said that the three most important aspects to scriptural interpretation are context, context and context. Another explication of this school of interpretation is the expression, "scripture interprets scripture". This contextual approach is not as predominant in legal interpretation, but as you can see from the Ring excerpt it does figure into the analysis--at least in Justice Scalia's influential jurisprudence.

Constitution Anyone?, Part II.

A mother obtained an injunction against her minor daughter's boyfriend. The order barred the boyfriend from contacting the daughter and her family. The boyfriend appealed; a California Court of Appeal affirmed. (Brekke v. Wills (Jan. 25, 2005) 2005 WL 170783. Link to the opinion here, but be warned the language is R or NC-17-rated.)

The injunction was granted and affirmed despite the fact that the boyfriend never threatened, attacked, or threatened to attack the girlfriend. In sum, the mother found letters in her daughter's room that contained threats only against the parents. Nevertheless, the Court issued an order enjoining the boyfriend from associating or communicating with the daughter for any purpose.

The facts are extreme relative to the parents, but the remedy is also unduly extreme because it prevents any association or communication between the boyfriend and girlfriend in the absence of any threatened harm to the girlfriend.