Quotable Quotes, Part II.

"The Ten Commandments contain 297 words, the Bill of Rights 463 words, and Lincoln's Gettysburg Address 266 words. A recent federal directive regulating the price of cabbage contains 26,911 words."

--New York Times

(HT: May it Please the Court.)

Angels in the Courthouse.

The Angels won. Just like their on-field fortunes, the baseball team has beat back the City again. According to the Court's website minutes ago, Anaheim's petition for writ of mandate has been denied.

Here's the sum total of the entry: "Petition denied. Not for publication. Aronson & O'Leary[.] Sills Concurs and dissents."

Quotable Quotes, Part I.

"There are three sorts of lawyers - able, unable and lamentable."

--Robert Smith Surtees

Book Reviews, Part VIII (Wild at Heart).

Wild at Heart by John Eldredge contains valuable advice...if you are going into battle.

"Battle" as in: World War II, William Wallace (Braveheart) and Maximus (Gladiator). These examples feature prominently in Mr. Eldredge's book. Read his own words: "In your life you are William Wallace...." (p. 142). And, "The whole crisis in masculinity today has come because we no longer have a warrior culture, a place for men to learn to fight like men." (p. 175.)

Just when the reader believes that Mr. Eldredge must be speaking purely metaphorically, he pulls the rug out from under such an assumption.

Claiming he is "not advocating a sort of 'macho man' image" (p. 26), Eldredge then fills his book with examples that seem to fall squarely under this stereotype. For example, he advises one woman's husband to get a motorcycle, and ridicules men who only know how to work "fax machine[s]" rather than how to kill wildlife (p. 48), and other cliched manifestations of "macho".

While Eldredge has some difficulty staying with his thesis, he impairs it further by some pretty acrobatic scripture twisting. He manages to turn Jesus' exhortation to turning the other cheek into precisely the opposite.

Also, he quotes Jesus thusly: "The kingdom of heaven suffers violence, and violent men take it by force." (p. 177.) Huh? Does Eldredge really want to imply that Jesus was advocating physical violence? If not, he should have included disclaimers on top of qualifications resting on explications. To the contrary, he argues that God is a "warrior" (p. 25), and then consummates his implication with the fungible concept that we are made in God's image. (p. 26.)

Eldredge's book is (pardon the pun) wildly popular. The cover indicates "over 1 million copies sold." Can "over 1 million" people be completely wrong? Yes, but not in this case.

The book contains some valuable nuggets to mine, especially at the beginning and end. At the beginning, the book catalogues an emasculating passivity enveloping American males. In the end, the book encourages men to live their lives with more risk (calculated), adventure and passion.

One need not step into the arena like Maximus in Gladiator to adopt this advice.

Law-Themed Movies: The List, Part II.

Last month, I started compiling a list of the best law-themed movies and invited nominations.

A reader suggested 1959's Anatomy of Murder starring Jimmy Stewart and George C. Scott. I had the pleasure of viewing the DVD recently and offer some observations.

1. Unlike most courtroom dramas, this film had no closing arguments (or opening statements to the best of my recollection); its courtroom scenes explored almost exclusively direct and cross-examination.

2. Unlike most criminal trials, the criminal defendant in this drama took the stand, and yet had to field only 1-2 questions from the prosecution.

3. Unlike most Stewart movies, although his character was sympathetic, he stretched the bounds of ethics. For example, he entered into an unethical fee arrangement with his client (contingency fees are improper in criminal matters), and also suggested his client "tailor" his testimony around an insanity defense.

Notwithstanding the lack of closing argument, and let's face it, its vintage, the movie was a powerful courtroom drama, which gains and grasps viewers' attention for its duration.

Anatomy definitely deserves a high place on the list of the top 20-25 law-themed movies that will eventually be published here.

Finally, I'm not certain if the expression, "I'm just a simple country lawyer" originated in this film, but Stewart breathed life into it. I have heard it said that when an attorney makes that somewhat self-effacing declaration, grab your wallet. Stewart persuasively underscored the adage.

Revenge of the Imputed Bar Exam Score, Part II.

Everyone was happy with the California State Bar's solution--imputing scores--to address the pilfering of essay answers given for the February bar exam. (See prior post here.)

All were satisfied--except those who received letters (e.g. here and here) informing them their bar cards would not be imminently forthcoming.

One recipient made a federal case out of it. Literally.

Read the lawsuit here. The plaintiff, a real estate broker and law school graduate, brought "the action on his own behalf for the relief of $43,000,000.00, Injunctive relief under 42 U.S.C. 1983, the United States Constitution, California Constitution, Antitrust laws of the United States, and Consent Decree entered into by the U.S. Justice Department (DOJ) and the American Bar Association (ABA), and Federal and State Tort laws." (p. 1.)

Another notable excerpt: "Security at the Bar examination test site is very strict. Applicants are searched, probed, fingerprinted, have handwriting samples taken, scrutinized, videotaped and even followed in the restrooms and watched as we pee in the urinal.

"After the exam, I now learn that security and safety of the exams is so lax that an exam grader was hauling around the exams in their car, with no security, and no accountability as to what happened to the exams, and an utter disregard for the importance of the hard work and value of the intellectual property contained on the pages of the answers. That is CRIMINAL NEGLIGENCE." (Complaint, para. 20.)

(HT: En Passant.)

Dr. Spin Doctor.

When is a loss actually a win?

When a lawyer tells you so.

A local federal court just entered summary judgment against an attorney's clients (here). No problem. According to him, he and his clients actually won.

He said: "As far as we're concerned, it's not even a setback, and everything is on course." (J. Gottlieb, "Judge Rules Against Gay O.C. Couple", Los Angeles Times, June 17, 2005.)

And you thought the Dodgers' front office or politicians had cornered the market on spin.

This guy holds a Ph.D., summa cum laude.

Shades of "House of Sand and Fog".

Life imitating art imitating life.

Those familiar with the novel or movie, "House of Sand and Fog", will recognize this case.

Michael and Ruth Selesia carved out their share of the American dream in Fresno, California. Unfortunately, they got behind on some payments. Consequently, their bank directed the trustee to sell the property, which secured their loan of $15,000.

Four days before the trustee's sale, the Selesias tendered a payment, and the bank reinstated the loan. However, the bank did not notify the trustee that the loan had been reinstated.

So, the sale proceeded. A partnership named La Jolla Group II ("LJG") submitted the high bid of $15,500, for a property estimated to be worth $115,000.

LJG received and recorded the Trustee’s Deed Upon Sale. Five days after the recordation, the trustee informed LJG that a mistake had been made and the sale should not have happened. Nevertheless, LJG filed an unlawful detainer action against the Selesias to evict them from their home.

The trustee recorded a Notice of Rescission of Trustee’s Deed and tendered a refund check to LJG. LJG rejected it. The bank sued to cancel the Trustee’s Deed Upon Sale. LJG cross-complained for slander of title, and requested that the Notice of Rescission of Trustee’s Deed be cancelled. The Selesias also joined the legal fray; they sued all of the above parties.

Following consolidation, the trial court essentially ruled that LJG acquired no interest in the property. LJG appealed.

The Fifth District Court of Appeal affirmed, holding that since the overdue payments had been paid and the loan reinstated, the bank could not properly proceed with the sale and LJG acquired nothing.

The Selesias' American dream continues.

"Blawg Review".

Check out an intriguing potpourri of blawg entries at the latest "Blawg Review" hosted by InternetCases.com. Blawg Review 10 features two posts from yours truly (although only one was submitted).

Revenge of the Imputed Bar Exam Score.

This is not the title of a horror movie. At least not a fictional one.

It was a real life horror to at least one California Bar applicant. He learned that one of his essays was stolen and would not be graded, and then received the coup de grace--he failed.

In late May, 2005, the Bar informed certain test takers that their answers to essay question six on the February bar exam were stolen from a grader's car. As a result, the Bar "imputed" scores using a pro rata and regression analysis. Read the Bar's letter here and here.

One recipient of such a letter was not too pleased. Read his blistering letter to a member of the California Assembly here. (Note: the author of this anonymous missive may not be the same as the person to whom the above-linked letter was addressed.)

(HT: En Passant via LawSchool.com.)

"Christian Carnival".

The latest "Christian Carnival" is up at Reformed Politics, featuring about 40 posts, and including my Cinderella Man review. Incidentally, this review received an "instalanche" from Instapundit at Blogcritics, where it is also published.

Not Quite the Ultimate Sanction, But Close, Part II.

Coincidences can be fun.

I was in court today defending an alleged securities fraud lawsuit, and the same motion calendar included a high profile case, Alan Sporn v. Home Depot, USA, Inc. that I wrote about earlier (here).

Hence, this happenstance allows me to scoop (again, I might add), the MSM, which previously covered the Sporn case, but was absent today.

Recapping Sporn, 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.

Receiving no response to the complaint, Mr. Sporn's lawyer filed a request for entry of default (like a win by forfeit). Later, the trial court conducted a default prove-up hearing, and issued a default judgment in favor of plaintiff for $930,000.

About eight (8) months later, Home Depot filed a motion to set aside the default and default judgment. The trial court denied the motion. In turn, Home Depot appealed.

The Fourth District (Third Division) rejected the appeal, characterizing it as "frivolous" and "offensive" (here). Additionally, the appellate court returned the matter to the trial court for consideration of the amount of sanctions to be imposed against Home Depot for the appeal.

Today, the trial court conducted that sanctions hearing, which disclosed several developments.

1. Mr. Sporn and his counsel have collected $1,100,000.00, representing the principal and interest portions of the judgment.

2. Mr. Sporn's counsel, OC attorney Steve Young, has the matter on a 40% contingency fee (originally, 30%, plus 10% because Home Depot appealed).

3. Mr. Sporn is seeking a 10% sanction (thus, $110,000.00).

4. In response to court inquiries, Mr. Sporn's counsel said he did not record all of his time due to the contingent nature of his fee, but estimated that his time sheets will show about $76,000.00 in fees, using an hourly rate of $400 times the number of hours expended on appeal. However, he argued that it would be unfair to his client for the court impose any sanction other than the 10% contingency fee because otherwise his client will be out of pocket for the difference.

5. Home Depot estimates that Mr. Young's fees are in the range of $28-32,000.00, based on 70-80 hours at $400 per hour.

6. Mr. Sporn's counsel is to submit his time sheets to the court by Monday, June 13, 2005.

7. The trial court indicated that the "lodestar" (hourly rate times number of hours) may not be the end of the analysis. The court might employ a multiplier to the lodestar to reach the final number.

Memed.

Kyle Beckley, a Chapman University law student and extern at the Fourth District Court of Appeal (Third Division), has tagged me with a meme making the rounds. So, in the interest of conformance to good blogging ethics, here's my response.

Number of books I owned - probably about 1000-1200. Of those, I have completed approximately three quarters.

Last book(s) I bought - Courtroom 302: A Year Behind the Scenes in an American Criminal Courthouse (2005) by Steve Bogira and iCon Steve Jobs : The Greatest Second Act in the History of Business (2005) by Jeffrey S. Young and William L. Simon.

Last book I read- How Lawyers Lose Their Way, A Profession Fails Its Creative Minds (2005) by Jean Stefancic and Richard Delgado. The book explores these law professors' perceived maladies with the legal profession and offers an antidote or two.

Five that mean a lot to me - Mere Christianity by C.S. Lewis; Into the Wild by Jon Krakauer; Millionaire Mind by Thomas J. Stanley; Institutes of the Christian Religion by John Calvin; and Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice by Kevin A. Ring. With only five options, this list culls a book from the genres I tend to harvest from mostly: theology, biographies; business/economics and law.

In turn, I'm tagging Georgina at Release The Hounds! and The Last Moderate.

Movie Review: "Cinderella Man".

Let's dispel any rumors that the movie was alternately titled, "Seabiscuit in a Ring" or "Rocky Rocks the Depression".

Had the filmmakers not drawn on the true story of James J. Braddock, they might have been sued or at least accused of appropriating from those other movies. Certainly, similarities abound; it's a Rocky-like underdog story set against the backdrop of the "Great Depression". Nevertheless, Cinderella Man stands on its own and excels beyond them.

This story chronicles the inspiring comeback of James Braddock during 1933-34. Despite losing nearly everything, Braddock refused to abandon his integrity, his commitment to his family or his faith in his country. For example, he counseled his son, "No matter what happens, we don't steal. Not ever." He eschewed the radical political philosophy espoused by an angry friend, and instead expressed confidence in FDR's ability to bring the country back. Braddock also subjugated his pride to ensure that his family would not be fragmented. He eventually took private and public assistance for a time (but later repaid), and worked as a laborer on the docks (even with a broken hand). Conversely, although the film does not overtly convey a message of Braddock's abandonment of religion during these severe times, two scenes at least suggest his faith waned. First, when praying with his wife, he confessed, "I'm all prayed out". Second, his priest asked him why he hadn't been to church.

Recovering from injuries that ravaged his boxing career, Braddock fought his way back into an unlikely heavyweight title. He did so against the ominously portrayed Max Baer, who is (probably unfairly) villainized here. Clubber Lang fared better against Rocky fans than Baer did with the audience at my screening.

In this light, the movie uses the primal or base aspects of boxing as its vehicle--replete with bone jarring hits. However, the movie does not require a pugilist's attitude to enjoy.

If anything, the movie is about universally accessible relationships: with Braddock's family; with his own character and integrity; and with his self-sacrificing friend, manager and trainer Joe Gould (ably played by Paul Giamatti).

No review of this movie can be complete without revisiting Russell Crowe's craftsmanship. Following his tour de forces in Gladiator and A Beautiful Mind, Crowe transforms himself yet again for this role. He has the unparalleled ability to convey a War and Peace-like volume of emotion and delineation in his simple, "I'm sorry", delivered to his wife Mae (played by Renee Zellweger) near the nadir of their lives. It's approaching the point where I would pay to see Mr. Crowe dramatize a phone book.

Director Ron Howard has taken some criticism that the movie tends toward the sentimental. Of course it does. It makes no pretensions about being a "feel-good" movie. So, embrace it. Feel good while watching it, and when you're done watching, you can feel good reminiscing about it too.

Cinderella Man receives an "A".

(Full disclosure: the fine folks at Universal and Grace Hill Media arranged for me to attend a free screening.)

Lawyer Ethics--Like Non-Dairy Creamer?

Are lawyer ethics like non-dairy creamer--a laughable oxymoron?

I don't think so. Despite all the bad press attorneys get (some deserved admittedly), lawyers on the whole do care about ethics.

For examples, the profession requires formal training in ethics; passage of two exams on the topic (the bar and a dandy called the MPRE); continuing ethical education; and dues paying to an organization whose core purpose is to police unethical lawyers.

Few, if any, other professions have placed such an emphasis on ethical practice. Ever hear of used car sales ethics? The wrapper's still on the text I saw in the library.

Education and enforcement obviously constitute external forces designed to fashion ethical lawyers. However, there are internal forces at work as well. The following excerpt from an attorney calling himself, "The Greatest American Lawyer" (ok, puffery might stretch the bounds of ethics), furnishes a fine example of one lawyer trying to guide the profession to higher ethics.

Addressing the phenomenon of receiving a "confirming" letter that doesn't resemble the conversation or commitments it purports to confirm, this attorney runs through the standard options and arrives at a somewhat unique proposal designed to better the practice one lawyer at a time. GAL writes:

"How many times have you received a letter from opposing counsel saying you said something you did not say? I receive several letters each week from opposing counsel which either tortures our conversation or outright misrepresents what was said all together. This usually starts a letter war which wastes attorney time and client money. Of course the goal is to be able to waive the letter in court and convince a judge and gain unfair advantage in the case.

"I have struggled with this issue for years. I have tried fighting fire with fire. I have engaged in the CYA letter war fighting furiously over what was said and what was not. [I] wonder what would happen if we dedicated ourselves to counseling other attorneys on professionalism in a non-threatening manner. Today, I dedicated myself to sending a private response an an example of which follows:

"Greg: I have passed you[r] email onto my client for review. However, I did want to send you this personal note. You included in your email the following statement:

"'In our telephone conversation of yesterday, you represented to me that if we could document to you that [my client] had requested that your client register these domain names as an agent and paid for them, that you would advise your client to transfer the domain names immediately to [my client] .'

"Obviously, I did not say this at all, although I agreed that it would be relevant information to know so I could advise my client. Creating the impression of non-existent agreements for the purpose of leverage is a common tactic in our profession. I receive slight exaggerations and overreaching quotes attributed to me each day. I’m certain you do as well. And to each of them, I am now responding privately and would encourage you to do the same in a non-demeaning, non-threatening way. I think we all tend to simply play by the rules which everyone else plays by after a while. We give up questioning whether the rules are appropriate or even helpful.

"I also have come to believe that these tactics (perhaps they are not even tactics any more since no one pays much attention to them) have never really provided any real value to my client in my experience. I have come to believe that such ‘tools of the trade’ really do work to undermine the level of professionalism which we must all come again to expect from each other as lawyers and the profession as a whole. I have committed not to do it moving forward in my career. I won’t say I have never done it myself since that would be untrue. I spent years fighting fire with fire.

"I have also come to believe that such habits also work against the interest of my client since they more often than not undermine the prospect of resolution, rather than further my client’s goals. To the extent such overreaching undermines the attorney client relationship of the opponent; the client is again disadvantaged in most instances. An exception might be when you know the opponent is being lied to by their own lawyer.

"I look forward to working with you on this matter towards a resolution. I am recommitting ... that the client’s goals must remain secondary to the legal profession itself which makes those goals possible. Granted, our profession has gone in directions which none of us should be proud (I’m sure you have your list as well).

"Why this email? I am working with a group of top attorneys and other professionals nationally to reclaim the professional aspect of the legal business. Each of us has committed to creatively and constructively attempt get involved ‘on the ground’ in order to shift the system back towards its ideals (which I know we all would appreciate).'"

More than a modest proposal.

(HT: The Greatest American Lawyer: Our duty to help other lawyers be professional ...)