Law Religion Culture Review

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

Thursday, March 31, 2005

A Litigation Odyssey.

This story could be made into a movie. (It was.)

A dispute that evidently could have been resolved for $1000 mushroomed into a court battle you won't believe.

This litigation odyssey involved myriad correspondences, motions, discovery, and two appeals (including an influential published opinion, Taubman Co. v. Webfeats, 319 F.3d 770 (6th Cir. 2003) (First Amendment protects non-commercial critical commentary even involving trademarked domain name). Over many months, they destroyed countless trees in their paper flurry.

In case you might doubt the veracity of this nearly unbelievable account, the litigant who (for the most part) represented himself documents his story with copies of letters, pleadings, other court records, and even some telephone messages received from the other side's attorneys.

You don't have to be a lawyer to appreciate it. In fact, if you are not an attorney, you will probably relish most how a layperson took on a law firm and its well-heeled corporate client. It delivers laugh-out-loud moments. One could probably not write fiction this engaging.

Be warned, however. The story is told over 115 "acts", but trust me. It pays off.

If you finish the complete saga, feel free to leave comments regarding your reactions. Enjoy!

Wednesday, March 30, 2005

"Christian Carnival", Part III.

The latest edition of the "Christian Carnival" (No. 63) is up at Weapon of Mass Distraction. It features, in part, my post on the theology of the movie, "Constantine", with Keanu Reeves.

Monday, March 28, 2005

Angels in the Courthouse, Part III.

They didn't sell tickets. They probably could have. From my front row seat, it was quite an engaging display at the Court of Appeal this afternoon as the Angels squared off against the City of Anaheim.

To recap, Anaheim has tried to block the team's name change to the Los Angeles Angels of Anaheim. The City lost at the trial court essentially because the judge ruled that the Angels "technically complied” with their lease because Anaheim was "included" in the new name, Los Angeles Angels of Anaheim.

The City appealed (or filed a petition for writ of mandate) asking the Fourth District to direct the trial court to change its ruling. In a statistically unusual action, the appellate court accepted the petition and ordered the Angels to show cause why the trial court should not be directed to change its ruling.

Today the Court heard arguments on the writ petition. I won’t rehash the polemics specifically because I think a more insightful approach would be to highlight each of the justice’s questions and comments to perhaps get a view into their thinking (although admittedly such questions or comments may not necessarily indicate how each would rule).

A. Presiding Justice David Sills

Justice Sills asked the City’s attorney about whether there was “irreparable harm” here if the only damages at issue were monetary. (This question goes to one of the elements/factors of an injunction. If money can compensate fully for the wrong, then there is no irreparable harm, and hence, an injunction is unnecessary.)

“What would you have us do?” was Justice Sills’ next query to the City’s attorney. He seemed concerned about whether it was too late to do anything. He returned to this theme with a question to the Angels’ attorney about what was printed on the tickets sent out to season ticket holders. (The response was that the tickets only have “Angels” on them; not Los Angeles.)

Justice Sills later explored whether other alternatives would have been acceptable to the City, such as “Anaheim California Angels” (as opposed to a name that had two distinct geographic areas or cities referenced in the same name).

Justice Sills asked the Angels’ attorney whether he could cite a single example where a professional baseball team had two cities in its name. (The attorney posited, “Minnesota Twins”, contending that those familiar with the Twin Cities would interpret it as such, but Justice Sills noted that Minnesota was a state.)

Directing this query to the Angels’ attorney, Justice Sills asked what the City was bargaining for when it requested the lease require its municipality to be included in the team’s name.

Justice Sills questioned the team's approach making a unilateral change without seeking to bring a “declaratory relief” action in court to ascertain whether the name change would comport with the lease.

Justice Sills repeatedly asked about the status of settlement discussions, and invited the parties to try to work out their differences before a mediator.

B. Justice Richard Aronson

Justice Aronson questioned whether the appellate court could do anything but affirm the trial court if the trial court, as fact finder, simply resolved the “conflicting inferences” of a contract. He returned to this theme later in the oral argument asking whether as a reviewing court they were limited to setting aside only “arbitrary or capricious” trial judge rulings.

Although it wasn’t a substantive question, Justice Aronson expressed his eagerness for the City’s attorney to get to the “implied covenant of good faith and fair dealing” part of his argument. In other words, even if the actual text may not specifically prohibit: “Los Angeles Angels of Anaheim” the argument goes that such a change sounds in “bad faith” and would constitute a breach. Justice Aronson used these precise words at least once about the Angels’ proposed name change.

On this topic, Justice Aronson asked the Angels’ counsel what were the reasons the trial court said there would be no probability of success for the City’s argument that the proposed name change violated the implied covenant of good faith and fair dealing.

Justice Aronson asked the City’s attorney whether the City was bargaining for “prominence” and whether it was an express requirement of the lease.

Justice Aronson questioned the team’s attorney whether the City should have been on notice when negotiating the lease that another owner would have the right to include change the name to include another city in the team name.

C. Justice Kathleen O’Leary

Justice O’Leary asked about whether this case was about a name loss only because there was no loss of location, i.e. the Angels still will play in Anaheim.

Picking up on something Justice Sills asked about, she questioned the City’s attorney about whether the name California Angels of Anaheim would be more damaging to the City.

Directing this question to the Angels’ counsel, Justice O’Leary asked whether the City had a right to rely on a reasonable name, even though the lease language was flexible in requiring only that “Anaheim be included therein”.

In one of the lighter exchanges, the attorney for the team referenced the name “Arrowhead Pond of Anaheim”, and Justice O’Leary jumped in, noting that Arrowhead was a water company, not the location. "You got me!", the attorney conceded.

No ruling was announced and no indication given when it might materialize. After about 1.5 hours of argument, the matter was ordered under submission.

Sunday, March 27, 2005

Constitution Anyone?, Part V.

This post updates our preview (here) of the U.S. Supreme Court case concerning the injunction Johnnie Cochran obtained against a picketer. The Supreme Court just heard arguments, and we'll provide quotes (below) of the more entertaining exchanges.

By way of background, Ulysses Tory did not appreciate Mr. Cochran's performance in the O.J. Simpson case or something else (actually, Mr. Tory was a client). So, he took to picketing Mr. Cochran's office with signs calling him "a crook, a liar and a thief" and a "bad boy". (J. Steele, "Speaking of Johnnie", California Lawyer, February 2005, p. 12.)

Another sign asked the age-old riddle: "Can a lawyer go to HEAVEN? Luke 11:46." (R.K.L. Collins, "Johnnie Cochran, Word Cop", L.A. Times, March 27, 2005.)

A court ordered the picketer to permanently refrain from saying anything about Mr. Cochran--good or bad. (R.K.L. Collins, "Johnnie Cochran, Word Cop", L.A. Times, March 27, 2005.) Specifically, the order forbade Mr. Tory from (1) picketing Mr. Cochran's office and (2) 'orally uttering' any statements in a public forum about him or anyone at his firm. (Id.)

"During oral arguments on Tuesday, the justices grappled with the absurdity of a ruling so sweeping that it not only prevents Tory from saying things that are demonstrably true about Cochran, but could reasonably be interpreted as a gag order on Tory's attorneys. Referring to that peculiar possibility, Justice David Souter asked Chemerinsky: 'You're in trouble too, aren't you?' The question said it all.

"At another point in the arguments, Justice Sandra Day O'Connor turned to Cochran's lawyer, Jonathan Cole, and openly announced what all nine justices knew — the order is 'clearly overbroad.' Frustrated, she then asked, 'What are you going to do about it?' Sensing trouble, Cole suggested that the order could be more narrowly tailored. Amazed by the concession, Justice Antonin Scalia chimed in: 'You're conceding that it's overbroad?' Cole backed away, arguing that although he did not think that to be the case, the justices apparently did. Then, by way of feigned flattery, Scalia added: 'Very perceptive.'" (R.K.L. Collins, "Johnnie Cochran, Word Cop", L.A. Times, March 27, 2005.)

With even greater confidence, I'll reiterate my prediction from January: reversal or modification.

Friday, March 25, 2005

Movie Review: "Constantine", Part II.

Here's some "inside baseball". Probably the most searched post on this site is my "Constantine" movie review (here) (although there's been considerable interest also in the Anaheim v. Angels series: here, here, here, and here).

So, to boost traffic, perhaps I should do more movie reviews or simply extend the "Constantine" review. Both, I surmise.

Accordingly, I submit germane portions of a recent interview with the movie's star, Keanu Reeves. He delivered somewhat of a head-scratcher. He coined another oxymoron: "secular religiosity".

Referring to the film's theology, "I think of it as a kind of secular religiosity," Reeves said. "The piece itself is using icons and a platform in a kind of catholic heaven-and-hell, god-and-the-devil, human souls, fighting for those. I was hoping that these concepts could become a platform that are humanistic, that the journey of this particular hero is hopefully relatable to -- even though they're such fantastic characters and situations -- that it's still a man trying to figure it out. I think that those kinds of journeys, a hero journey, or Siddartha, these are all kind of seeking aspects that hopefully have something of value to our lives, that we can take with us and hopefully in the works that are entertaining and these kinds of journeys that I think all of us, especially in western traditions, relate to. I think these motifs of seekers, messiahs, of anti-heroes, heroes, all of these aspects are journeys that I think deal with things that we deal with in our day-to-day in a way, and are entertaining."

Director Francis Lawrence acknowledged the film's religious voice more than Reeves, but still argued an appeal to the nonreligious. "There is a lot of Catholic theology in it, but it also sort of appeals to people who aren't Catholic or Christian. Just because there is this idea of the balance and if it's actually angels or demons or is just negative energy or positive energy or just being influenced one side or the other. Just the polarity of the way the world works. I think people have always responded to that."

(Hat tip: MovieWeb.)

Thursday, March 24, 2005

Angels in the Courthouse, Part II.

We are approaching the "ninth inning" with respect to Anaheim's effort to block the Angels' name change to the Los Angeles Angels of Anaheim.

According to the Fourth District Court of Appeal's website, the Angels have been ordered to "show cause...why a writ of mandate should not issue commanding the superior court to set aside its order of January 21, 2005 which denied petitioner's motion for a preliminary injunction". In other words, the Court appears primed to set aside the trial court's order and wants to know what reasons, if any, the Angels have to prevent this order. The briefs have been submitted to the appellate court; and the Fourth District has indicated no further evidence or briefing need be submitted.

Nevertheless, the Angels have requested the opportunity to submit additional "evidence", the City has opposed, and the Court has not yet ruled on this request. (In addition, just today, the Court has granted a MSM request to broadcast the hearing).

The oral argument on this "order to show cause" is set for Monday, March 28, 2005, at 1:00 p.m. The Court has also announced the three-justice panel assigned to hear this case: Justices Sills, Aronson and O'Leary. I have appeared before all of these judges. My read is that this panel is favorable to the City, especially Justice Sills who writes with unusual clarity, common sense, and wit.

Your legal correspondent will attempt to attend and provide a summary that same day. Stay tuned.

Wednesday, March 23, 2005

Constitution Anyone?, Part IV.

Do not continue reading. Stop. Read yesterday's post. Then read about and watch the "movie" or animation short allegedly created by Monday's school shooter.

Still harbor any doubt about the reasonableness of the club/school officials decision to briefly suspend the students to investigate their violent movie?

I didn't think so.

(HT: The Smoking Gun, March 23, 2005.)

"Christian Carnival", Part II.

The latest installment of the "Christian Carnival" (no. 62) is up at Another post of mine is featured. Enjoy!

Tuesday, March 22, 2005

Constitution Anyone?, Part III.

This is not your parents' 4-H Club.

Members of this club made a film depicting teenagers killing other teenagers with knives. The local 4-H director suspended them pending an investigation to determine whether they posed a risk of violent behavior. The students sued the Regents of the University of California (who administered the club), contending the suspension from the 4-H club violated their free speech rights. (Robbins v. Regents of the University of California, Case No. B169470, March 16, 2005; read the full case here.)

Finding no constitutional violation, the trial court granted the Regents' motion for summary judgment. The Court of Appeal affirmed. The appellate court observed that the movie indisputably contained violence and raised concerns about the possibility of future violence. The temporary suspension was intended to protect the club members, rather than to discipline the filmmakers. Under these facts, there was no First Amendment violation.

This case demonstrates two general principles of constitutional jurisprudence. First, courts often engage in a balancing of competing interests or principles. Here, the potential danger to the minors in the club was to be balanced against the members' free speech rights. In light of recent events, a brief suspension to investigate potential violence hardly seems unreasonable.

Second, the First Amendment is not absolute; not all speech is "free". There are limits to free speech, such as liability for slander.

This case crystallizes the application of such principles in a reasonable opinion.

Monday, March 21, 2005

Movie Review: "Downfall".

I just saw "Downfall". It's not a documentary of the Lakers' season.

It's a movie that focuses on the Third Reich's collapse in the Spring of 1945. Most of the film is set in Hitler's bunker. Not surprisingly, the movie was based in part on a book entitled, Inside Hitler's Bunker: The Last Days of the Third Reich by Joachim Fest. "Inside Hitler's Bunker" could easily have served as the film's title. The film was also predicated on a book by Hitler's young secretary Traudl Junge, Until the Final Hour: Hitler's Last Secretary. Observing these events firsthand, Ms. Junge features prominently in the story, and the actual Ms. Junge appears at the end of the film. In addition, the movie follows a Nazi internist who futilely seeks to help injured Germans, including civilians who have not been evacuated while the Russians invaded Berlin.

The film has garnered numerous accolades including an Academy Award nomination for Best Foreign Language Film (it's in German). I have also seen some reviews that have called it one of the best "war movies" ever made. It's not a "war movie" in the traditional sense, with men charging up hills, or lots of battlefield action. It's more of a view behind the frontlines (an intriguing perspective highlighted to a lesser extent in an excellent film by Randall Wallace and Mel Gibson, "We Were Soldiers" (2002).) This interior perspective actually provides additional disturbing insights into Hitler and his military leaders. They expressed such chilling distain for their own people--civilians or otherwise--that I heard gasps from the audience in the theater. This abject betrayal of the German people was juxtaposed with Hitler's paranoic rants about his "betrayal" by his generals, other officials and the civilians themselves.

This leads me to Bruno Ganz' portrayal of Hilter: off-the-charts staggering. I have read that Mr. Ganz obtained one of the few recordings of Hitler's voice (other than in an oratory setting) and assiduously sought to bring it to the screen. It's hard to find any flaw in his acting performance.

This movie is the antithesis of the pathetic tv movie that disgraced CBS' airwaves a year or two ago, which erroneously made Hitler appear like a cartoon character. In fact, if Scott Peterson were sentenced to watch that CBS tv movie, any lucid appellate court in the land would have stricken down such a sentence as cruel and unusual punishment.

"Downfall" is punishing in another way; it's punishing because it makes the viewer see and feel the horrifying realities of this history.

"Downfall" receives an "A-".

Saturday, March 19, 2005

A Dubious Distinction.

Now that the Lakers are sub-.500, it's probably time to highlight a dubious distinction.

They have chased away, given away, or lost:

1. The best general manager in the game, Jerry West;
2. The best center in the game, Shaquille O'Neal; and
3. The best coach in the game, Phil Jackson.

That's quite an achievement.

Thursday, March 17, 2005

Using Scripture in Trial, Part III.

Some concluding remarks.

1. The most troubling aspect of the prosecutor's closing argument was that the Defendant "is the disciple of Satan." "The"? This claim puts a fresh twist on "demonizing" someone. Here, the prosecutor is claiming some special, unique position for the defendant. The definite article, "the", suggests he is alone in this status. On what authority can he make this statement? How does he know? No matter how horrific the defendant's crimes were, they do not necessarily qualify him as "the disciple of Satan".

2. I think the Court made the right decision not to impose a per se rule barring any biblical references. No reasonable person would want a rule that allows an otherwise free-wheeling closing argument with references to movies, books and stories, but circumscribes any allusion to anything biblical. Moreover, it is difficult, if not impossible, to extract all things religious from the judicial system. Much overlaps exists. For example, one of the Ten Commandments and California penal code section 187 both prohibit murder. Bearing false witness and perjury go hand-in-hand.

Wednesday, March 16, 2005

Using Scripture in Trial, Part II.

Although I wasn't consulted, I would have signed on the majority's opinion on the question whether the biblical references constituted prosecutorial misconduct. It didn't.

Nowhere did the prosecutor state that the Bible commanded these jurors to take a particular action. That directive would have crossed the line.

However, he might have been guilty of a "criminal" misinterpretation or misapplication of this biblical text. Justice Moreno put his finger on it calling it a "confusing, comparison between defendant and the Horsemen". This error actually militates in favor of the argument that it was more of a loose illustration than an appeal to a higher authority.

Justice Moreno's following passages invite comment: "To pretend otherwise would be to ignore the reality that, to many people, the Bible is not just a literary work but a holy text." Similarly, he stated: "jurors...may believe the Bible to be divinely inspired." These related assertions are rather insulting to those who do regard the Bible as "a holy text" or "divinely inspired". Even if the listeners do esteem it as "holy" or "inspired", this view does not lead inexorably to an automaton-like response when anyone invokes or references it in an argument. Justice Moreno never explains or states his basis for this purportedly automatic causal connection.

"Christian Carnival".

ChristWeb hosts the latest "Christian Carnival" and features a post from yours truly.

Tuesday, March 15, 2005

Using Scripture in Trial.

It was so accommodating for the California Supreme Court to produce an opinion this month that falls perfectly within this blog's niche integrating law and theology. (People v. Harrison, Case Number S035367, March 3, 2005; read it here--

In sum, the Harrison Court addressed a scenario where the prosecutor quoted scripture and used biblical imagery in his closing argument. The defendant was convicted of two murders, and then sentenced to death. This appeal was predicated, in part, on a claim that the prosecutor's religiously themed argument constituted "misconduct".

1. Closing Argument Invoking Revelation's Apocalypse.

"[The prosecutor] stated that although he was 'not a religious person by any stretch of the imagination' he had read about the apocalypse as described in Revelation, the last book of the Bible. '[T]he word apocalypse,' he said, put 'defendant's conduct in proper perspective,' except that in contrast to the apocalypse, defendant did not have 'the necessary mandate' to carry out his actions. The prosecutor explained that in the apocalypse, a crowned rider on a white horse who came to conquer the world was followed by three other men on horses who came to kill and take peace away so that the world could start anew.

"Describing the apocalypse as 'the mandate of God,' the prosecutor argued to the jury: 'On what steed, with whose authority does [defendant] cut a path through the City of Oakland leaving murder and death and destruction and utter annihilation in his wake? By what authority is he guided? [¶] This man is the disciple of Satan, ladies and gentlemen. He has worked his way up into this community from the deep inner core of this planet like a sour foul putrid weed. He has cracked the soil and killed all before him so he can live, and when the sun goes down he comes out and he slaughters and he maims and he murders. [¶] But, . . . he's not the judge and jury in this case, you are, and that's where he comes up short. The man is the utter harbinger of senseless total annihilation, no more, no less. You must take the sword from him and cast it down and tell him that he was wrong and he may go no further.'" (Id.)

2. Limits on Using Biblical Authority.

The California Supremes summarized State law that "prosecutors may not appeal to religious authority in a closing argument to the jury. Our opinions have most often discussed such arguments when made at the penalty phase of a capital case, because the decision whether to impose the death penalty is an ethical and normative question that at first glance seems amenable to religious argument. As we have explained, such argument is improper, because to invoke God may diminish the jurors' sense of personal responsibility for the decision whether to impose the death penalty or may encourage jurors to base their penalty decision on a different or higher law than that found in the California Penal Code." (Id.; citations omitted.)

While observing that the "biblical reference came at the guilt, not the penalty, phase of trial", the Harrison Court stated: "Appeals to religious authority at the guilt phase are also impermissible, but for a different reason than at the penalty phase. The jury at the guilt phase is not charged with making an ethical or normative decision; instead, it decides questions of historical fact based on the evidence and applies to those facts the law as articulated by the trial court. Religious input has no legitimate role to play in this process." (Id.; emphasis added and citation omitted.)

3. Argument Was Not Appeal to Authority, but Akin to a Literary Reference.

Nevertheless, the Court reasoned that the prosecutor did not necessarily appeal to religious authority when he referenced the Bible. (Id.) "Not only is the Bible a religious text, but it is also generally regarded as a literary masterpiece; indeed, it is among the oldest and best-known literary works in our culture. The English departments of major secular universities teach courses on the Bible as literature. [footnote omitted] And this court has repeatedly held that in closing argument attorneys may use 'illustrations drawn from common experience, history, or literature.' (Id.; citations omitted.)

The California Supreme Court continued: "When references to the Bible are involved, the line between literary allusion and religious appeal is often a fine one. A prosecutor who mentions the Bible in closing argument runs a grave risk that a reviewing court will find that the line has been crossed and will reverse the defendant's conviction. Because any use of biblical references in argument must be carefully scrutinized, cautious prosecutors will choose to avoid such references. Nevertheless, so long as they do not appeal to religious authority, prosecutors may refer to the Bible in closing argument to illustrate a point. Here, a reasonable juror likely would understand the prosecutor's biblical references merely as a powerfully dramatic illustration of the gravity and enormity of defendant's crimes. The prosecutor did not argue that biblical law or doctrine required defendant's conviction of the charges against him. [citation omitted.] Indeed, he prefaced his remarks with a statement that he himself was 'not a religious person.' Because the prosecutor did not use the biblical allusion as an appeal to religious authority, we do not find prosecutorial misconduct in this case." (Id.)

The California Supreme Court affirmed the judgment in all respects.

4. Concurring Opinion Finds Misconduct Because Appeal Was to Higher Law.

While all the other justices signed the majority opinion, Justice Carlos Moreno filed a concurring opinion on the single issue of the prosecutor's religious comments during trial. He wrote: "I would conclude that the prosecutor's invocation of religion during defendant's guilt phase trial constituted misconduct, but was not prejudicial, given the strong evidence of defendant's guilt.

"As the majority rightfully acknowledges, we have repeatedly held that a prosecutor may not appeal to religious authority in a closing argument to the jury. ... I agree with the majority that '[w]hen references to the Bible are involved, the line between literary allusion and religious appeal is often a fine one.' ... I believe that the prosecutorial argument at issue here, however, falls squarely on the wrong side of that line.

"Of particular significance are the prosecutor's extended metaphor invoking the Four Horsemen of the Apocalypse (see Revelation 6:1-6:8), his description of defendant as 'the disciple of Satan,' and his charge to the jury to 'take the sword from [defendant] and cast it down and tell him that he was wrong and may go no further.'

"The majority is correct to note that 'not every reference to the Bible is an appeal to religious authority.' Literary allusion, which is by definition 'a covert, implied, or indirect reference' to a work of literature (1 Oxford English Dict. (2d ed. 1989) p. 349), is permissible in closing argument even when the work of literature alluded to is the Bible. Indeed, counsel would be well within the bounds of permissible argument if he or she referred to a skeptical expert witness as a 'doubting Thomas' (John 20:24-20:28), or called someone a 'good Samaritan.' (Luke 10:33-10:34.)

"However, extended references to biblical passages that explicitly relate principles or illustrations from the Bible to the case at hand go well beyond mere allusion. While it is true that the Bible is 'generally regarded as a literary masterpiece,' ... it is clearly more than a work of literature to many potential jurors who may believe the Bible to be divinely inspired. As such, any extended reference to the Bible can be expected to carry an inherent authority behind it that illustrations drawn from Dickens, Shakespeare, or J.K. Rowling could not. To pretend otherwise would be to ignore the reality that, to many people, the Bible is not just a literary work but a holy text.

"Although the majority correctly notes that 'any use of biblical references in argument must be carefully scrutinized' ..., it then concludes that 'a reasonable juror likely would understand the prosecutor's biblical references merely as a powerfully dramatic illustration of the gravity and enormity of defendant's crimes.' I am unpersuaded.

"An argument need not directly tell jurors to supplant the state's law with God's law to invoke religious authority. The prosecutorial argument at issue here was not only biblical in style and substance, but made an explicit and extended comparison between defendant and the Four Horsemen and called defendant a 'disciple of Satan.' Indeed, the aim of the prosecutor's extended, albeit somewhat confusing, comparison between defendant and the Horsemen appears to be that the defendant, unlike the Horsemen, lacked 'the necessary mandate' to kill. In contrast, though the prosecutor did not directly urge the jury to follow religious law rather than California law, he did suggest that, unlike defendant, the jury had a divine mandate, if not a religious obligation, to 'cast . . . down' defendant and to judge him guilty. In addition, using language strongly evocative of biblical passages, the prosecutor charged the jury with a mandate to 'take the sword from [defendant] and cast it down and tell him that he was wrong and he may go no further.' This extended metaphor was an invitation to the jury to apply a 'higher law than that found in the California Penal Code.' ... Because I believe that the prosecutor's closing argument at the guilt phase crossed the line between permissible allusion to the Bible and impermissible religious exhortation, I would conclude that the argument was improper." (Id.; Moreno, J., concurring.)

Next post, we'll opine on who got the better of the argument between the majority and concurring opinions.

Monday, March 14, 2005

Movie Review: "The Butterfly Effect" (DVD--Director's Cut).

I know, I know. Any movie starring a central character from "That '70s Show" or "Punk'd" has a strike against it, right?

Wrong. Ashton Kutcher is not reprising his role as a simpleton in "The Butterfly Effect: Director's Cut" (2004). To the contrary, Kutcher here is multifaceted and mostly serious as "Evan Treborn". (In addition, he serves as executive producer.)

An intriguing mental exercise is to analyze how one's life might be different if certain events didn't happen (or happened differently). For example, what would your life be like now if you didn't go to a particular college? Would you have met your spouse; secured your current job? "Sliding Doors" with Gwenyth Paltrow tried to explore this fruitful concept in the 1998, but failed to deliver.

"The Butterfly Effect" does not fail. It delivers a fascinating story that it constantly mutates by revisiting and tweaking pivotal circumstances, and then displaying the repercussions.

Theologically speaking, "The Butterfly Effect" clearly would fall heavily on the side of self-determination as opposed to divine will; free will over predestination. Psychologically or sociologically speaking, it's all about nurture versus nature. Outside events essentially control in this world.

I emphasize that I saw the director's cut version on DVD, because according to the filmmakers' commentary, the ending for the director's cut differed from the theatrical version, which they briefly described. Go with the director's cut--it's extremely intense, disturbing and thought-provoking.

"The Butterfly Effect" receives a "B+".

Friday, March 11, 2005

Suing Yourself.

"You finally did it to yourself."

--Steve Martin (as Neal Page) to John Candy (as Del Griffith) in "Planes, Trains & Automobiles" (1987)

Well, one lawyer finally did it to himself. He sued himself (in a way).

Link here for the full story. In sum, the lawyer represented a woman when she purchased a home and when she refinanced. Both times she used Centerre Title--a company the lawyer owned. The lawyer suggested that she had a claim against the lender for illegally charging a "fax fee". The lawyer produced to her a retainer agreement for himself and other law firms to bring a lawsuit against the mortgage company. In the course of that lawsuit, the court ordered Centerre and the original lawyer to be named as third party defendants. Centerre collected the "fax fee" from her. (HT: S. Korris, The Madison Record, "Alton attorney accidentally sues himself", March 8, 2005.)

Thursday, March 10, 2005

Real Genius, Part II.

Mark Burnett is back in court. The tv impresario who gave us "Survivor", "The Apprentice", "The Restaurant", and most recently, "The Contender" is embroiled in a lawsuit with a company called Madison Road Entertainment. (M. James, "Burnett, Firm File Dueling Lawsuits", L.A. Times, March 10, 2005.) ("[B]ack in court" implies a prior litigation; Stacy Stillman, from the first Survivor edition, sued Mark Burnett and others. Here is Ms. Stillman's lawsuit. For other documents pertaining to that dispute, including a motion to strike under California's anti-SLAPP statute (see February 12, 2005, post), click here and scroll down to bottom third of page; links on right under "The Survivor Litigation".)

Last week, Burnett sued Madison Road, a Los Angeles production firm, accusing it of fraudulently misrepresenting its relationship with him. (Id.) Burnett alleged that the firm, which helped lure companies to place their products in episodes of "The Apprentice" on NBC, overcharged advertisers, demanded "exorbitant" fees and pocketed money that should have gone to him. (Id.)

Just a few days later, Madison Road countersued Burnett, claiming defamation and libel. The firm asserts that Burnett--not Madison Road--drove up the price of getting a product placed on "The Apprentice" to as much as $5 million. (Id.)

These dueling lawsuits spotlight the lucrative practice of product placements. Even if not the innovator, Burnett is the master of it. With the advent of TiVo and the time-tested practice of zapping out commercials through videotaped playback, advertisers justifiably have been searching for ways to get bang for their advertising bucks.

Crafting an engaging storyline around a product, such as the roll-out of Pepsi's "Edge" in "The Apprentice 2", seems a much better use of advertising dollars than running an ad that people can, and often do, ignore. Again, I respectfully submit, Mr. Burnett is a genius.

Whether or not he wins or loses these suits, he has perfected a practice that makes his shows especially valuable to advertisers--even more so than those with similarly high ratings.

UPDATE: Notwithstanding the rancorous exchanges in the pleadings, the parties settled in mid-May, 2005, and will work together again.

Wednesday, March 09, 2005

Book Reviews, Part V (Jesus Revealed).

Published in 2002, I realize Jesus Revealed by Mark D. Roberts is not as fresh as a warm Krispy Kreme donut. Nevertheless, I note that it is still featured atop Dr. Roberts' blog (here), so this review is probably still timely.

I loved this book. (Full disclosure: I studied New Testament under Dr. Roberts at Fuller Theological Seminary and attend his church.)

The book analyzes Jesus’ various dimensions by unpacking the meanings of titles ascribed to him. Each chapter is dedicated to a rich appellation. Dr. Roberts explores: “Jesus the Rabbi”, “Jesus the Prophet”, “Jesus the Holy One of God”, “Jesus the Son of Man”, “Jesus the Savior”, “Jesus the Lord”, “Jesus the Son of God”, “Jesus the Word of God”, and “Jesus the Light of the World”.

Dr. Roberts draws together historical and biblical threads to create a far more focused, profound and complete picture of Jesus than one might have before reading the book. However, this is not a mere academic exercise.

One of my systematic theology professors insisted that we conclude our papers, often investigating theological esoterica, by answering the question, “so what?” It seemed a worthy question. Dr. Roberts answers the overarching “so what” of his study, as follows: “We know him more clearly in order to love him more dearly.” (p. 213.)

Further, Dr. Roberts posits the implications flowing from a particular title. For example, when discussing "Jesus the Savior", it should lead to more trust. (p. 136.) With respect to “Jesus the Word of God”, he writes: “If Jesus was indeed the Word of God in human form, then he was also the ultimate revelation of God.” (p. 188.) Also, “if Jesus is the Word Incarnate, then we must use our minds to think carefully and energetically” (p. 189).

He contrasts this approach with “our culture’s obsession with feelings. Our world has enthroned emotion as the measure of all things. Postmodernism has replaced the Cartesian formula, ‘I think, therefore I am’ with a new credo: ‘I feel, therefore I am, maybe. At any rate, I feel, and that’s all that really matters.’ This emotional … orientation to life has infected the Western world, including Christianity. I know Christians who relish their emotional relationship with Jesus, but invest very little mental effort in trying to understand him.” (p. 188.)

What does Dr. Roberts suggest as an [unconventional] antidote? “Read theology that challenges your mind. Engage in serious conversation with others about matters of faith. And above all, study the Scriptures, the written Word of God that reveals the incarnate Word of God to us.” (p. 190; emphasis added.)

This book can help such a seeker on the path of theological inquiry. But, it does not encourage it as an end in itself, nor does it fall victim to dry discourse. The book is balanced with practical illustrations and peppered with interesting anecdotes including Dr. Beck Weathers’ trauma on Mount Everest in 1996, chronicled so vividly in Jon Krakauer’s superb, Into Thin Air (1997).

If you enjoyed After "I Believe": Experiencing Authentic Christian Living (2002) also by Mark Roberts, I think you will enjoy this one even more. If you regularly read his blog, then I have to ask why you don't have Jesus Revealed in your library already.

Tuesday, March 08, 2005

Angels in the Courthouse.

Tomorrow is the deadline for the Angels to submit their opposition (or "return") to the petition for writ of mandate filed by the City of Anaheim. (For background on this case, see, e.g., posts of February 17 and 19, and March 1, 2005.) Link to the Court of Appeal's website here for its docket entries on this case, including its "invitation" for a return. This development is unusual. The Court of Appeal routinely rejects writ petitions in summary fashion--no reasons are given. For example, I had a recent case where my opponent filed a writ petition on a Friday. The petition was served by mail. I received both the petition and the order denying it in the same mail delivery on Monday. That the Court wants to hear from the opposition does not guaranty success for the City, but it augurs reason for optimism.

Monday, March 07, 2005

Logophiles Unite!

Logophiles will appreciate the nice body of work that Judge Ferdinand Francis Fernandez has constructed over the past 15 years or so on the Ninth Circuit Court of Appeals. Enjoy the following sampling:

"But let that be, at least after today's didactic exercise a district judge will be able to incant canorous [richly melodious, tuneful] phrases which will please our ears." (Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999) (dissenting).)

"They indicate that it takes no genius or epopt [one instructed in the mysteries of a secret system] to see what the message will be." (Committee to Save Mokelumme River v. East Bay Mun. Utility Dist., 13 F.3d 305 (9th Cir. 1993) (concurring).)

"To put it another way, absent a compelling reason the district court cannot have abused its discretion, but it would take a better haruspex [a diviner in ancient Rome who bases predictions on inspection of the entrails of sacrificial animals] than I to divine that from the opinion." (United States v. Garett, 179 F.3d 1143 (9th Cir. 1999) (concurring).)

"The district court, with that perceptive and informed sententiousness [terse, aphoristic or moralistic in expression] that often characterizes the work of our district judges, said that: Merely because Bear Stearns was hired as an expert consultant to render financial services does not mean it was in a position of superiority in this relationship between two sophisticated business entities." (In re Daisy Sys. Corp., 97 F.3d 1171 (9th Cir. 1996) (dissenting).)

"I will not undertake to burden, bore or ensorcell [bewitch or enchant] the reader by glossing what the Montana Supreme Court actually wrote when it decided this case." (Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) (concurring and dissenting).)

"Perhaps Congress should resile [recoil, return to a prior position] from its sentencing experiment." (United States v. Valdez-Gonzalez, 957 F.2d 643 (9th Cir. 1992) (dissenting).)

"So plan it seems, it would take a marvelous act of interpretation, bordering on thaumaturgy [the performance of miracles], to read the constitution the Tribe's jurisdictional reach beyond the norm." (Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (dissenting).)

"No matter how timorous or cautious we are about religion, the city's action cannot be seen as minatory [having a menacing quality]." (Paulson v. City of San Diego, 294 F.3d 1124 (9th Cir. 2002) (dissenting).)

"If the statement did present a problem, I hardly think that the City can place a tarnkappe [a magic cap securing the invisibility of the wearer] over the policy's reification of hostility at the threshold by adding that requirement." (Gentala v. City of Tucson, 244 F.3d 1065 (9th Cir. 2001) (dissenting).)

"My reading of the stelliscript [a writing in the stars] suggests that upon Newdow's theory of our constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings." (Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002) (concurring and dissenting).)

"Moreover, the statute speaks with enough clarity to permit (nay require) one to stop with its own words, rather than undertaking to stravage [roam] in a wilderness of possible legislative purposes." (Kang v. U. Lim Am. Inc., 296 F.3d 810 (9th Cir. 2002) (dissenting).)

"To say that, does not enisle [to isolate or make an island of] this country, although it does not recognize that we are a separate nation." (Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) (dissenting).)

"In other words, whether your interests are driven by news, need or nebbiness [impertinent interference or spite], your rights under FOIA are the same." (FLRA v. United States Dept. of Navy, 958 F.2d 1490, 1498 (9th Cir. 1992) (dissenting).)

(HT, R. Crissell, "Are You a Logophile?", California Lawyer, November, 2004, p. 33.)

Saturday, March 05, 2005

Socratic Method, or Higher Education, Part IV.

First year students in law schools become well-acquainted with the Socratic method.

As plied in that setting, professors question students about cases they are assigned to read. The questioning, usually in front of another 100 or so students, can be intimidating and unsettling because often no matter what position the student takes the skillful practitioner can make it (or the student) look absurd. Nevertheless, the process is designed to cause a didactic experience (and develop a thick skin).

Business schools also routinely employ a similar case-method of teaching. Andrew Tobias wrote about the "Greatest Moment in [His] Life" in his (equally understated in title) book, The Only Investment Guide You'll Ever Need (2002). Here's an excerpt:

"Harvard Business School uses the 'the case method' to impart its wisdom, which on a practical level, means preparing three or four cases a night for the following day's classroom analysis. Typically, each case sets forth an enormous garbage dump of data. ... Typically, too, I could not bring myself to prepare the cases very thoroughly. ...

"The professor, a delightful but devious man, noting the conspicuous absence of paperwork by my station, had the out and out malevolence to call on me...

"My instinct was to say, with contrition: 'I'm sorry, sir, I'm not prepared'--a considerable indignity--but in a rare moment of inspiration I decided to concoct a bluff, however lame. ... Said I, 'Well, sir, this case obviously was meant to get us to work through the elaborate formula we were given to determine pricing, but I didn't do any of that. The case said that XYZ Company was in a very competitive industry, so I figured it couldn't charge any more for its sprockets than everyone else, if it wanted to sell any; and the case said that the company had all the business that it could handle--so I figured there would be no point in charging less than everyone else, either. So I figured they should just keep charging what everybody else was charging, and I didn't do any calculations.'


"The professor blew his stack--but not for the reason I had expected. It seems that the whole idea of this case was to have us go round and round for 55 minutes beating each other over the head with our calculations, and then have the professor show us why the calculations were, in this case, irrelevant. Instead the class was dismissed 12 minutes after it began--to thunderous applause, I might add--there being nothing left to discuss. [footnote: Herewith a list of my other triumphs at Harvard Business School: I graduated.]" (pp. 7-8; emphasis in original.)

So, what's the moral of the story?

Be unprepared? Or, it's better to be lucky than good? Or the ability to "think on one's feet" cannot be taught? It could be any number of these (or others), but it's such a good story I had to relate it here.

Friday, March 04, 2005

Financing Litigation, Part II.

What happens when an injured or damaged person has an important legal claim, but no or little resources to advance it?

One way is to borrow the money. The City of Lodi borrowed funds for its legal fees at 25% interest, as discussed yesterday.

Another way is to retain an attorney on a contingency fee basis. Under this arrangement, if there is no recovery, then there is no fee owing to the lawyer. Thus, the attorney shares in the risk of nonrecovery. If there is a recovery, then the fee is deducted at a previously agreed upon percentage, usually 33%. The percentage is negotiable between the attorney/law firm and the client. California law requires that clients be informed that the percentage is not set by law and can be negotiated.

The contingency fee arrangement can be advantageous for clients who do not have the money to pay hourly fees because they can obtain legal counsel to represent them. In exchange, they agree to take less of the recovery, if any.

In the City of Lodi case, the City might have been better served by taking the case on a contingency, rather than borrowing the money at 25%. Viewed at the outset (rather than with hindsight), the difference between paying 33% (from the recovery) and 25% interest (whether or not there is a recovery) is smaller than the risk of loss. In other words, most litigants have more than a 7% chance of losing. Accordingly, the better economic decision would be to pursue the case on a contingency fee basis, assuming other all things are equal.

Thursday, March 03, 2005

Financing Litigation.

My birthplace in Northern California showed up in the news this week. The picture wasn't pretty.

The City of Lodi "borrowed $16 million from Lehman Brothers, at 25% interest, to finance litigation intended to force insurers and others to pay for the cleanup of the town's pervasive groundwater contamination, caused by dry cleaners and other local businesses." (L. Romney, "Lodi Settles Suit Against Lehman Bros.", L.A. Times, March 2, 2005, p. B3; emphasis added.)

With compounding interest, the loan ballooned to approximately $31 million. The City sued Lehman, alleging that Lehman conspired with City's former environmental attorney to profit from the loan to the City's detriment. (Id.) Lehman countersued for the allegedly unpaid balance of the loan. The parties settled their respective suits, and the City agreed to pay Lehman Bros. $6 million (bringing the total paid, or to be paid, to $9 million). (Id.)

As to the results of the underlying litigation, Lodi was reportedly able to obtain agreements to pay more than $6 million toward cleanup. (Id.) In addition, the City has a pending lawsuit for legal malpractice against the former environmental lawyer who allegedly used the borrowed funds to pay for his limousines and private planes. (Id.)

For background, financing litigation is nothing new. It's known as "champerty", as discussed in the Forbes article linked here. This piece also explains how Lehman came to be involved in loaning millions at 25% interest to the City to finance its environmental cleanup litigation.

In tomorrow's post, we'll discuss the options faced by litigants with claims, but no or insufficient resources to pursue them.

Wednesday, March 02, 2005

Theory v. Practice, Part II.

On February 28, we observed the chasm between theory and practice in connection with opening statements in trials.

Consider the following thoughtful excerpts from a law professor's article discussing this phenomenon and extending it to closing arguments. (D. Bernstein, "The Abuse of Opening Statements and Closing Arguments in Civil Litigation", Civil Justice Memo 38 [Manhattan Institute]; read it here.)

"Attorneys are traditionally barred from introducing inadmissible materials during opening statements and closing arguments, engaging in inflammatory rhetoric, misstating the law, and otherwise abusing their prerogatives. [footnote omitted.]

"In practice, however, courts have been quite deferential to attorneys, and generally have allowed them to go beyond appropriate argument to the jury. ... There are two primary reasons why judges have allowed parties to abuse opening statements.... One is ideological, the other is practical.

"The ideological explanation is the popularity of the theory, held explicitly or implicitly by many judges, lawyers and law professors, that the purpose of civil jury trials is not to ensure that current law is correctly applied to the facts. Rather, juries are seen as a check on legal rigidity and are expected to be indicators of the direction of the law’s evolution. [footnote omitted.] Juries therefore are not expected to strictly apply the facts to the law in all circumstances. Instead, juries are expected to base their verdicts on 'extralegal values' or 'their sense of justice.' [footnote omitted.] Judges have therefore been inclined to acquiesce to attorneys’ unduly emotional appeals in jury argument, even when the attorneys have been technically in violation of the rules of proper argument.

"The practical explanation for lack of supervision of jury argument is that the issue of the abuse of jury argument has simply not attracted the attention of the legal establishment. The issue of proper jury argument receives little attention in law schools. The law regarding opening statements and closing arguments is rarely taught as part of either evidence or civil procedure. Instead, material about opening statements and closing arguments is usually relegated to trial advocacy courses, if it is covered at all. These courses, and the largely adjunct faculty who teach them, focus on winning techniques, not the rules. Not surprisingly, the academic literature on appropriate jury argument is sparse.

"Nevertheless, over the last decade or so judges have become more willing to police jury argument. Part of the reason for this shift in behavior is the increasing interest in what Peter Huber calls the 'rule of fact'—ensuring legal decisions actually conform to the underlying evidence. Interest in the rule of fact has led to more liberal rules for the granting of summary judgment, a crackdown on junk science, and it seems, a nascent crackdown on attorneys who make illicit, unfairly prejudicial arguments to the jury.

"Equally important, attorneys have simply exhausted the judiciary’s patience. As the stakes of civil litigation have grown, attorneys increasingly are tempted to stretch the boundaries of acceptable argument, perhaps to the breaking point. One commentator finds that 'final argument has increasingly turned into a quagmire of personal character attacks, impermissible reference to non-record evidence, and blatant pleas to jurors’ sympathies and prejudices.' [footnote omitted.] This attorney notes that 'the final argument of a trial is often viewed as a legal battleground in which almost anything goes.'

"A representative example of this 'anything goes' mentality among attorneys occurred in a personal injury lawsuit filed by a plaintiff injured in an accident at Disney World. [footnote omitted.] In closing arguments, the plaintiff’s attorney labeled one defense witness a 'good soldier' and another a 'joker.' Counsel for plaintiff also accused the defendant several times of having 'ripped off the plaintiff’s thumb,' and characterized the defendant as 'some nickel and dime carnival' throwing 'pixie dust' in an attempt to mislead the jury. The jurors were told that the defendant’s attorney thought they were 'fools' and 'idiots.'" (Id.)

Professor Bernstein concludes his piece with remedies for the abuse of jury argument, including “invited response,” (meaning, giving the other party leeway in responding in kind); limiting instructions (such as ignore what he or she just said), and even granting mistrials. "More recently, courts have been issuing pre-trial orders in limine banning the attorneys from raising certain issues, and exercising direct judicial control over jury argument."

The article places the onus almost entirely on judges to police their courtrooms, as if attorneys should be assumed to be out of control. While I agree that courts can and probably should fulfill a policing role, it seems that healthy burden should be placed on attorneys to act ethically and professionally. Also, Professor Berstein is correct that law schools should do a better job emphasizing practical courses such as trial advocacy. It's not even a required course in most law schools; it should be.

Tuesday, March 01, 2005

It's a Matter of Interpretation, Part IX.

We've been covering the baseball Angels' dispute with the City of Anaheim as a subset of our larger series about rules of interpretation in legal and bibilical texts. (See, e.g., February 17 and 19, 2005, posts.)

The City has appealed (technically, filed a petition for a writ) the denial of its application for a preliminary injunction.

According to the City's papers filed yesterday with the Fourth District Court of Appeal, Third Division (sitting in Santa Ana, California):

"Names and reputations take time to build, but are destroyed in an instant...The contract that was to bring fame to Anaheim will instead bring shame."

Regarding the proposed new name of the franchise, the brief employs a sports analogy (and a thinly veiled shot at the team): "Anaheim will be dumped from the name as abruptly as David Eckstein was shipped to St. Louis."

The City's brief continues: "With the clock ticking, and millions of taxpayer dollars at stake, the trial court erred in failing to bite the bullet on this claim... Anaheim was clearly bargaining for the name recognition given to locations associated with Major League Baseball teams."

"Defendant (Angels Baseball, L.P.) used its discretion to embarrass Anaheim and deny Anaheim the exposure for which it plainly bargained. This breaches Defendant's duty of good faith and fair dealing."

As discussed here previously, the City relies, in part, on the declaration of Antonio G. Tavares, former president of Disney Baseball Enterprises, who negotiated and agreed to the terms of the 1996 contract between Anaheim and the Angels. "The [Tavares] declaration further closes the already tight loop on the parties' actual intent: 'Never did we contemplate that the team name would include another geographic name in addition to Anaheim, as this would be inconsistent with the purpose of Section 11(f): to give Anaheim prominence and closely identify Anaheim with the team so that Anaheim would be publicized when the baseball team was publicized.'"

The City's attorney also opines that using the Angels' logic, the following names also would have be contractually permissible: "The Angels who are Embarrassed to be Associated with Anaheim" or "The Angels of the Disgusting City of Anaheim" or "The Angels Formerly Known as the Team Identified with Anaheim." In the end, the argument concludes that "we sense and know that the law does not permit such absurdities. Technical compliance with a contract has never trumped the reasonable expectation of the parties."

Although not argued in the appellate papers, I came across an interesting tidbit. The full name of Los Angeles was "El Pueblo de Nuestra Senora la Reina de los Angeles de Porciuncula". (HT: Stones Cry Out, "35 Facts You Were Perfectly Happy Not Knowing", February 25, 2005.)

"El Pueblo de Nuestra Senora la Reina de los Angeles de Porciuncula Angels of Anaheim". Has a nice ring, don't you think?