Angels in the Courthouse, Part V.

What's happening with Anaheim's supposedly urgent petition to block the Angels' name change to the Los Angeles Angels of Anaheim?

Fifty-one games in, it awaits decision.

"The court evidently does not share [the City's] urgency, since it has not ruled in the nine weeks since the hearing or the five weeks since mediation collapsed. The court has until June 27 to issue its ruling, and Anaheim co-counsel Andy Guilford said he was 'not at all' concerned that delay might foretell defeat for the city. 'I think they're carefully reviewing it,' he said. 'It's an important decision.'" (B. Shaikin, "Angel Report", Los Angeles Times, May 30, 2005; emphasis supplied.)

Fun With Refunds, Part V.

In the bar review class action, the plaintiffs filed a first amended complaint yesterday against West Publishing Corp. dba Bar/Bri and Kaplan, Inc. This post exclusively highlights the changes to the parties, the substantive allegations and the prayer.

1. Changes to Parties

Three (3) new class representative plaintiffs have been added: Loredana Nesci, Jennifer Brazeal, and Lisa Gintz.

Ms. Nesci purchased the Connecticut Bar/Bri bar review course for $1,825. Ms. Brazeal purchased the Michigan Bar/Bri course at a price of $1,743, and Ms. Gintz bought the Louisiana Bar/Bri course for $858. (First Amended Complaint ["FAC"], paras. 12-14.) These new plaintiffs join Ryan Rodriguez, who bought the California Bar/Bri course at a price of $2,775, and Reena Frailich who purchased the same course for $2,519.25. (FAC, paras. 10-11.)

2. Changes to Substantive Allegations

The first amended complaint adds allegations in three (3) areas. First, the new pleading alleges that Bar/Bri agreed to pay Kaplan to exit the bar review business.

The first amended complaint reads: "during the weekend of August 9-10, 1997, an executive of Kaplan communicated with an executive of BAR/BRI in which BAR/BRI proposed that if Kaplan stayed out of the bar review business, BAR/BRI would exit at least the LSAT market in which it competed, plus pay to Kaplan a sum in excess of $500,000 per year, on the pretext that it would be compensation for some service Kaplan would be providing for BAR/BRI, but which, in fact, was part of the continuing consideration to be provided to Kaplan, on the condition that it stay out of the full-service bar review course market so long as such payments are made. Kaplan accepted this proposal. At the same time, both Kaplan and BAR/BRI also competed in the sale of CPA preparation courses. As to this line of commerce, the parties agreed to continue competing against each other. They then also agreed to 'strategically' work together in the future to promote their complementary businesses. Within the past four years, BAR/BRI has made, in connection with the aforesaid ongoing agreements, similar annual payments to Kaplan." (FAC, para. 37, p. 11:3-16.)

Second, the amended complaint augments the prior pleading with allegations of payments to law schools. "BAR/BRI has paid so-called 'consulting' fees to various law school administrators at least, in part, to assure that it maintains access to the use of such law school's assembly and common areas for marketing and related purposes and to further assure that any potential competitors will be unable to obtain such access." (FAC, para. 44(d), p. 14:17-21.)

Third, consonant with adding a Louisiana plaintiff (Ms. Gintz), the first amended complaint specifically addresses the Louisiana bar review market, as follows:

"As a further example of BAR/BRI consolidating its national monopoly in the provision of full service bar review courses, in Louisiana, for several years through 2003, there has operated a full-service classroom bar review preparation course in competition with BAR/BRI's, one of the very few states in which a competitor to BAR/BRI even existed at the time. That course, operated by Louisiana State University ("LSU"), most recently charged $545 per student, thus helped to keep down BAR/BRI's course pricing in Louisiana at the time to $695, a sum slightly in excess of that sum but far less than it charges elsewhere. However, in 2004, BAR/BRI secretly agreed to pay sums in excess of $50,000 per year to LSU, conditioned on LSU's agreement to stop offering its competitive course for at least three years. BAR/BRI has made at least the first such payment. Thereafter, BAR/BRI became the only provider of a classroom bar review course for the Louisiana Bar exam. It then immediately increased its bar review course price in Louisiana, charging $1095 for new bar course registrants, with plans to substantially increase its prices annually thereafter, unrestrained by competition. By its first increase in 2004, BAR/BRI more than doubled the price for which courses were available in Louisiana immediately prior to the date of said agreement. BAR/BRI's agreement to oust LSU as a competitor has been to the detriment of Gintz and other class members therein." (FAC, para. 44(f), p. 15:3-21.)

3. Changes to Prayer

In view of the new allegations regarding payments to law schools, the amended pleading seeks an order enjoining Bar/Bri from "paying or providing anything of value to any law school administrator or other staff member". (FAC, p. 25:15-16.) In addition, the plaintiffs request that the Court require West "make access to Westlaw [legal research site] for advertising purposes reasonably available to any bar review course provider on reasonable terms and conditions." (FAC, p. 25:17-19.)

We'll continue to keep you updated.

Movie Review: "The Assassination of Richard Nixon" (2004).

The film's title is improbable but memorable. Even though the movie is based on true events, we know that its title obviously lacks historicity.

Perhaps a more accurate name would have been the assassination of the would-be assassin of Richard Nixon--or, even more accurately, the self-immolation of the would-be assassin.

Sean Penn plays Samuel Bicke, a furniture salesman whose life of quiet desperation becomes progressively more desperate and less quiet. Parallels can be drawn to Robert DiNero and Martin Scorcese's "Taxi Driver", especially with the transference of rage onto a political figure.

Penn effectively draws the viewer into his slow descent into despair, depression and delusion. The acting is a masterful work of art. Moreover, the story is a compelling case study of the fraying of one's American dream--and the misdirected anger engendered by it. The movie envelopes this character study with an entertaining miasma of early 1970s culture.

On the strength of Penn's masterwork, "Assassination" receives a "B+".

The movie is out on DVD.

Higher Education, Part V.

I am in the middle of How Lawyers Lose Their Way, A Profession Fails Its Creative Minds (2005) by Professors Jean Stefancic and Richard Delgado, which will be reviewed here eventually.

In fact, I was reading it earlier this evening, and then I encountered the following related, yet independent post that was put up today. It discusses the shortcomings of legal education--a theme of How Lawyers Lose--and I thought the juxtaposition too coincidental to ignore.

So, here's the link to Legal Lies by a relatively recent law school grad and bankruptcy lawyer, Sherry Fowler.

(HT: Stay of Execution.)

Theory v. Practice, Part III.

In theory, the conventional wisdom goes that a trial attorney should never ask a "why" question of an opposing witness. In practice, it is done more frequently than you might expect. Here's an example:

"A defense attorney was cross-examining a Police officer during a felony trial - it went like this....

Q. Officer, did you see my client fleeing the scene?

A. No sir, but I subsequently observed a person matching the description of the offender running several blocks away.

Q. Officer, who provided this description?

A. The officer who responded to the scene.

Q. A fellow officer provided the description of this so-called offender... Do you trust your fellow officers?

A. Yes sir, with my life.

Q. With your life? Let me ask you this then officer, do you have a room where you change your clothes in preparation for your daily duties?

A. Yes sir, we do.

Q. And do you have a locker in that room?

A. Yes sir, I do.

Q. And do you have a lock on your locker?

A. Yes sir.

Q. Now why is it officer, if you trust your fellow officers with your life, that you find it necessary to lock your locker in a room you share with those same officers?

A. You see sir, we share the building with the entire court complex, and sometimes lawyers have been known to walk through that room."

(HT: Release The Hounds!, which in turn hat tipped Mike Nass, Philadelphia Police (ret.).)

"Christian Carnival".

The latest "Christian Carnival" has been posted at A Penitent Blogger, including my movie review of the current release, "Kingdom of Heaven", starring Orlando Bloom.

Why Men Hate Church.

I thought an apropos introduction to my long-promised book review of John Eldredge's wildly popular, Wild At Heart, would be the following recent post from a Roman Catholic priest, entitled, "Why Men Hate Church".

Here are some highlights:

"One of the few things that aggravates me very much is the Church in the United States is way too feminine: the music, the liturgy, the vestments, the homilies... [T]he Church in the U.S. needs balance between feminity and masculinity. As a priest, I am just as annoyed as the manly men who do and don't go to Church. On the other hand, there is nothing feminine about going before Almighty God, on your knees, asking for His grace and forgiveness, and giving Him homage."

(HT: Diary of a Suburban Priest.)

Law-Themed Movies: The List, Part I.

One ongoing conversation with some lawyer friends of mine is to compile the best law-themed movies.

In the end, I will post a definitive list of 20-25 of the top lawyer films for publication here. I'll start the list with some nonnegotiables. Please join in on "the conversation" by adding your votes in the comments.

In no particular order:

1. My Cousin Vinny;
2. Liar Liar;
3. Inherit the Wind;
4. Class Action;
5. Erin Brockovitch;
6. Body Heat; and
7. Primal Fear.

Here are some that may or may not make the list, but I invite reactions to their potential inclusion:

1. A Civil Action;
2. True Believer;
3. A Few Good Men;
4. The Rainmaker;
5. The Firm;
6. The Verdict; and
7. Presumed Innocent.

Fun With Refunds, Part IV.

You'll read it here first and exclusively.

Here's the latest regarding the class action against West Publishing Corporation (dba BAR/BRI) and Kaplan, Inc. over bar review courses.

The case is assigned to District Court Judge Manuel Real. He presides in downtown Los Angeles and is well-known as running a very tight courtroom.

Two megafirms are on the other side. Jones Day represents Kaplan, and Shearman & Sterling LLP serves as counsel for West Publishing.

The defendants have just been provided a thirty (30) day extension to respond to the complaint. Hence, their responses are due approximately June 19, 2005.

Expect some kind of challenge to the complaint, such as a motion to dismiss, which will be set for hearing about a month later.

Angels in the Courthouse, Part IV.

When I covered the March 28, 2005, oral argument on Anaheim's appeal of the trial court's refusal to block before trial the Angels' name change to the Los Angeles Angels of Anaheim, I focused on the questions the justices pitched at the attorneys. (Read it here.)

This approach has been generally validated by an interesting examination of U.S. Supreme Court oral arguments and resultant opinions.

"In a new study entitled 'The Illusion of Devil's Advocacy: How the Justices of the Supreme Court Foreshadow their Decisions During Oral Argument,' Sarah Shullman came up with a surprisingly simple and accurate way of predicting outcomes based on the number and tenor of oral argument questions by justices. Shullman's article, in The Journal of Appellate Practice and Process, reports on oral arguments in 10 cases she observed during the October 2002 term. As she watched, she tallied the number and tenor -- helpful or hostile -- of all the questions asked by all the justices. ... Shullman looked for correlations -- and found them. In all of the cases, the justices in aggregate asked more questions, and more hostile questions, of the party that ultimately lost the case." (T. Mauro, "Counting Questions: Adding Up High Court Outcomes", law.com, May 12, 2005; HT: The Volokh Conspiracy.)

Based on the questions lobbed at the Court of Appeal, I discerned at least two (2) votes likely for the City. However, the substantial passage of time has called into question just what the Court can (and will) do mid-baseball season.

The appellate court has deferred ruling on the City's petition for writ while the parties participated in mediation. These efforts at settlement failed. Accordingly, the matter returns to the Fourth District for a decision. Shifting back to the court has engendered some jockeying. In late April, each side has requested the ability to file letter briefs; see here. Evidently, the Court has not yet ruled on these requests.

Stay tuned.

Fun With Refunds, Part III.

I read the entire complaint in the "antitrust" class action brought by named plaintiffs, Ryan Rodriguez and Reena B. Frailich against West Publishing Corporation (dba BAR/BRI), and Kaplan, Inc. You can too. It's here.

The complaint provides an intriguing and tangled history of the machinations/mergers that allegedly consolidated power into "monopolist BAR/BRI". (See, e.g., Complaint, paragraphs 1-6; 26-37.)

Also, the pleading reveals that Kaplan, Inc. "is a wholly-owned subsidiary of The Washington Post Company." This relationship provided fodder for the plaintiffs: "[T]he Washington Post Company...is also the parent company of well-known national newspaper The Washington Post, famous for exposing corruption and speaking the truth--except when it came to Kaplan, as it happens, its most profitable subsidiary." (Complaint, para. 39, p. 12:23-26.) Zing.

(For our earlier post on this lawsuit and its lead counsel, Eliot Disner, link here.)

(HT: LawSchool.com.)

"Christian Carnival".

The current "Carnival" is up at semicolon, featuring 60 entries organized under several verses from Ephesians.

Movie Review: "Kingdom of Heaven".

Ridley Scott occupies an elite seat.

At a fictional gathering of the top two or three directors working today, Mr. Scott would (and should) have a place at the table.

Given his impressive body of work (e.g., “Gladiator” and “Blade Runner”), Mr. Scott drew me to the theater to see the just-released “Kingdom of Heaven” with great expectations.

I had a few:

1. That the movie would be visually and sonically beautiful—hallmarks of Scott films—it was;
2. That the film would be epic in scale—it was;
3. That a story set in the crusades of the late 12th century would be (or strive to be) politically correct—it was;
4. That the movie would be well-crafted down to the requisite period-piece details—it was;
5. That it would be replete with engaging action/battle scenes—it was; and
6. That it would be entertaining for the nearly 2.5 hour duration—it was.

“Gladiator” provides a useful benchmark. If you liked it, you will probably enjoy “Kingdom of Heaven”. The visually stunning cinematography and haunting music remind one of the myriad award-winning Russell Crowe epic; there are even some plot similarities that had to have been intentionally placed as an homage to Mr. Scott’s earlier masterpiece.

However, differences emerge. For example, “Gladiator” presents a clear-cut, good guy versus bad guy motif. “Kingdom of Heaven” is vastly more ambiguous. Intentionally so. I knew going in that a movie on the crusades could not possibly be supportive of Christians in particular, or religion in general. Scott’s film goes even further; there are several anti-religious sentiments injected somewhat ham-handedly in case one missed the subtleties. (Note, however, Mr. Scott did not write the screenplay).

Although Orlando Bloom did a creditable job, I could not help but contrast him with Mr. Crowe. Bloom seemed a bit miscast for a warrior-leader role, but in the end he aptly carried the film’s message without detracting from it.

“Kingdom of Heaven” receives an “A-".

Using Scripture in Trial, Part V.

Within the last two weeks, the California Supreme Court has addressed another death penalty case where the prosecutor deigned to quote scripture. Link it here: http://www.courtinfo.ca.gov/opinions/documents/S030644.PDF.

The defendant appealed and argued, among many other things, that the biblical references required a reversal of the death sentence. The California Supreme Court disagreed and affirmed.

Unlike the March, 2005 case (People v. Harrison) that we discussed here, here and here, this opinion does not provide the supposedly offending scripture quotations or even references to what the prosecutor said.

This omission is odd because word economy was not a virtue of this opinion. It spans over 115 pages. Yet, despite all that verbiage, the Court nowhere informs the reader what actually was argued to the jury with respect to scripture.

In fact, this abject lack of factual analysis, if written on a law school exam, would garner a very low grade.

Hack.

Goodbye, Colonel David H. Hackworth.

Rest in peace.

The Supreme Court Comedy Club.

Professor Volokh at The Volokh Conspiracy called for submissions of humorous passages from Supreme Court opinions.

Here's what I thought to be one of the better entries (it was nominated more than once). Justice Scalia famously wrote:

"To assert that unhesitant and categorical identification by four witnesses who viewed the killer, close-up and with the sun high in the sky, would not eliminate reasonable doubt if it were based only on facial characteristics, and not on height and build, is quite simply absurd. Facial features are the primary means by which human beings recognize one another. That is why police departments distribute 'mug' shots of wanted felons, rather than Ivy-League-type posture pictures; it is why bank robbers wear stockings over their faces instead of floor-length capes over their shoulders; it is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking 'You admit that you saw only the killer's face?' will be laughed out of the courtroom."

(Kyles v. Whitley, 514 U.S. 419, 466-67 (1995) (J. Scalia, dissenting.)

Fun With Refunds, Part II.

Lawyers and law students, feeling overcharged by your bar exam or LSAT prep course?

Here's a class action you might be interested in. According to BusinessWire, "More than 300,000 lawyers and law students were each charged an estimated $1,000 extra for bar review courses, according to a complaint filed against BAR/BRI bar review and The West Publishing Corporation and Kaplan, Inc. in the U.S. District Court for the Central District of California....

"West Publishing Corp., dba BAR/BRI, and Kaplan are joined as defendants in a class action lawsuit accusing the two companies of illegally dividing the highly lucrative LSAT and bar exam test preparation businesses. According to the complaint, executives of BAR/BRI and Kaplan secretly agreed to a per se illegal market division.

"BAR/BRI agreed to close its Law School Aptitude Test (LSAT) preparation course from the market in which Kaplan was the dominant competitor. Kaplan, in turn, agreed not to enter the full-service bar review business, in which BAR/BRI was the dominant competitor. The two companies then entered into an agreement to work together 'strategically' to enhance Kaplan's share of the LSAT market and to increase BAR/BRI's control of the bar review market.

"The complaint further alleges that at the time this agreement was entered into, Kaplan had entered into a letter of intent to acquire bar review materials and begin bar review courses across the country in competition with BAR/BRI. After Kaplan worked out its market division arrangement with BAR/BRI, it unilaterally terminated that agreement and abandoned all plans to compete against BAR/BRI. As a result, competition has been dramatically reduced, and law students and lawyers have overpaid substantially for their bar review courses ever since.

"The 'name plaintiffs' Ryan Rodriguez and Reena B. Frailich are suing on behalf of about 300,000 law students and attorneys to recover damages of some $300 million, plus costs."

(HT: The Southern California Law Blog.)

Eliot Disner is the lead attorney representing the plaintiffs. As a personal aside, Mr. Disner and I worked together defending an antitrust case several years ago. He knows his stuff, as they say.

UPDATE: I've updated this story here and here, with a link to the complaint and some exclusive information, respectively.

And Now Something Completely Different, Part IV.

Remember the Berkeley biology professor who attempted to scare the laptop thief into returning his computer? (See here.)

Here's a two-pronged update. First, the prof's gambit didn't work; the computer never materialized.

Second, the James Bond-esque tracking capabilities allegedly installed in the laptop didn't likely exist. In other words, he was bluffing, according to the story below.

"Most techies consider that anyone could see that the [prof] was telling porkies. One of the ways that [he] claimed he identified the tea leaf was by installing the same version of Windows on another computer. If the professor had attempted to use the same key to activate a copy of Windows, the activation servers would have denied him access." (N. Farrell, "Redfaced professor made up scary story", the Inquirer, April 25, 2005.)

"Some of the technobabble that the professor spouted to out the thief was impressive, but has not been found to work well yet." (Id.)

"He claimed that there were passive trackers embedded in the bezel of laptop screens beside the wireless transmitters. Technology like this does sort of exist, but is rare and not used by anyone outside the Department of Energy." (Id.)

"He also claimed that the wireless card in the laptop triggered some location data. This is possible, but pretty unlikely." (Id.)

"In fact a University spokesman told ABC that [the prof] had indeed made the whole thing up to scare the student into handing over the laptop." (Id.; emphasis added.)

Moreover, this professor has been quoted as follows: "Although I have unlimited respect for facts, and delight in their discovery and appreciation, I have come to the obvious yet almost blasphemous view that, with respect to teaching, the facts just aren't that important." (Id.)

Is that so?

(HT: the inquirer.net.)

Literally.

Ever notice when the word "literally" is employed for emphasis the speaker couldn't possibly mean it?

I'll give you a recent example. Over the weekend, the LA Times quoted a resident who complained about a Grateful Dead concert that happened near his Carson, California home. He said: "Let alone the type of music and the noise, people were roaming all over the neighborhood. ... Everything you could think of was going on. Literally." (D. Pierson, "Green Day's Not-So-Punk Rock", LA Times, April 30, 2005; emphasis supplied.)

Literally?

Are we to believe that human genome mapping was taking place? How about atom splitting?

These are things I could think of quite readily. Somehow I don't think the fans of Jerry Garcia and the boys were entertaining themselves outside this guy's neighborhood with such pursuits.

Not literally, ok?

Book Reviews, Part VII (A Life With Purpose).

You've seen the best, Ultramarathon Man by Dean Zarnazes (here). Now here's the rest.

Published in March, 2005, A Life With Purpose by George Mair provides a counterbalance to Ultramarathon Man. Purportedly a biography, this book provides little information that is not already in the public domain concerning Rick Warren.

Moreover, the book fails to furnish well-known (and easily ascertainable) facts, such as Dr. Warren's earned doctorate from Fuller Theological Seminary. In case you might object this criticism is nitpicking, consider that the book explores not only Dr. Warren's educational experience at Southwestern Seminary, but also delves into his undergraduate studies at California Baptist College in Riverside.

The book also neglects to discuss whether Dr. Warren has any children (he does), even though his daughter is somewhat of a public figure herself. This omission stands in contrast to the discussion of Dr. Warren's sister and brother-in-law, father and mother.

Nowhere in the text will you find any reference to Dr. Warren's rather high-profile and recent scrap with the United States government, which resulted in some published opinions from the U.S. Tax Court and Ninth Circuit Court of Appeals and literally an act of Congress.

If you expected to locate the writer's interview with Dr. Warren, you'll be disappointed because apparently the author elected not to bother, or he was declined (suggesting an unauthorized biography).

In addition to these various omissions, the book misreports some matters. It purports to inform the reader about Dr. Warren's web ministry to pastors. He alternates between "pastor.com" and "pastors.com", even though the correct address is "pastors.com". Unfortunately, the vast majority of these references were to the inaccurate pastor.com, and he only once or twice actually reported the correct site.

Also, Mair claims that Dr. Warren eschews publicity. While this may have been true several years ago, it cannot be legitimately asserted now (again this book was published in March, 2005). More recently, Dr. Warren has been a fixture of cable news shows, including "Larry King Live", Joe Scarborough's "Scarborough Country", and Bill O'Reilly's, "The O'Reilly Factor", and Time magazine. Clearly, Dr. Warren is intentionally using mass media to get his message out.

Perhaps most disturbingly, Mair closes his book by lifting chunks of Dr. Warren's materials with respect to his C.L.A.S.S. program (a baseball analogy where each class represents a place on the diamond), and the P.E.A.C.E. plan. Maybe Mair justified this apparent or near plagiarism because he called the book a "biography", but assuming he did not get Dr. Warren's approval, it's unseemly.

Three words: "Just say no".