Law Religion Culture Review

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

Thursday, September 28, 2006


As the trial progressed, the court systematically deconstructed the other side's case. Among other rulings, the judge crucially excluded their sole expert witness (as to my clients). As a result, the other side would be unable to prove liability against my clients on almost all of their claims.

Then, we embarked on a mini-trial on whether the remains of plaintiffs' case would be barred by the statute of limitations. The court expressed disdain for the plaintiffs' lack of preparation on this issue in particular. Counsel failed to obtain the Delaware record showing that the corporation was in good standing at the complaint's filing. This omission continued with various excuses (mostly blaming his clients) culminating in the judge sharply rebuking the other attorney with this precise quote: "Counsel, that is ludicrous!"

The context of this rebuke is too delicious to omit. First, counsel said he delegated the task of obtaining the record to the CEO (see prior post). Then, when that resulted in no record, he--against the court's instruction--allegedly delegated it to another of his clients, who was in Texas. When that client didn't get the record into court on time, the court's patience wore thinner than the attorney's credibility. The judge demanded that the attorney immediately call the second client and find out where the long-overdue document was.

Here's where it got especially amusing. The attorney came back into court and said that he tried to reach the second client, but he couldn't reach him--he got voicemail. About five minutes later, the clerk announced to the court that this same client--the Texas guy--was calling into the courtroom. The clerk observed that it was odd that while counsel said he was unreachable, he was calling the court. At this point, the other attorney thought he would jump in with his interpretation as follows: "That's why I couldn't reach him; he was calling the court!" The court thundered: "Counsel, that is ludicrous! How can you possibly say with a straight face that you were unable to reach him five minutes ago because he is calling the court five minutes later?" Silence ensued.

As the trial progressed, the court also deconstructed my opposing counsel's psyche in other ways. The judge constantly corrected him for various misdeeds. These included: speaking outside the record, i.e. evidence; opening his mouth and shaking his head in disbelief; submitting improperly formatted papers; citing authorities outside of California without copies for the court (and counsel); speaking too rapidly for the court reporter to record; clicking his pen incessantly (and being placed on pen restriction--twice); and you probably guessed it: he walked into the well during trial. (See September 12, 2006, post.)

All of this deconstruction led to an unprecedented moment. On Thursday morning, I arrived at court ready to hear the other side's argument on the statute of limitations. At this point, I observed there were no papers in front of my counterpart. Without warning, he announced that his clients had lost confidence in him and had terminated his services. He asked permission to leave. The court said he couldn't leave until his clients agreed to substitute him out in favor of a new attorney. The clients asked for a continuance to get another attorney. The court denied the continuance, and asked if they would be making an argument on the statute of limitations. At this point, an argument ensued. However, it was an argument between the attorney and his clients about whether he could or should make the argument. The court interrupted this dispute. Eventually the attorney argued his points. The court took this issue under submission.

Before the ruling, and after demanding one million dollars, the other side essentially abandoned their claims, and the case was over.

However, this end occurred only after the other attorney was fired; announced he was leaving the profession (because of this case); and expected to receive a summons and complaint for attorney malpractice.

Bad day at the office. Not so bad for my side, though.

Saturday, September 23, 2006


On the first day of trial, I tried a preemptive move to eliminate most of the corporate plaintiff's case against my clients.

I had learned that the corporation was evidently suspended when it filed the complaint. Filings by suspended corporations do not stop the statute of limitations. So, I argued the case was time-barred.

In support of my argument, I offered a certified record from the State of Delaware (the state of incorporation). The record indicated that the company was suspended about two months before the complaint's filing, and continued in suspended status for the relevant period. The other side claimed that the corporation had been revived before the filing (contrary to the certified record).

The court allowed the plaintiff some extra time to try to obtain such a document--although it expressed its displeasure that it hadn't been previously obtained. The plaintiff's attorney represented the CEO had obtained the document at the attorney's request. When this crucial document did not materialize as represented, the court became concerned that the truth had become a casualty.

As a result, the judge called the CEO to the witness stand. The court quizzed the CEO about whether the attorney had asked him to otain the record and when. The CEO denied the attorney had even asked him to obtain it, and of course, he had no such document.

Thus, the court concluded either the plaintff's attorney or his client was prevaricating. Not a good way to start a trial. Good for my side though.

Thursday, September 21, 2006


I have been engaged all week in a trial that has been so entertaining I should have probably been required to pay admission. I plan to post on the highlights--and they are legion--but I will start with a vignette from a matter occuring before my trial started.

Counsel asked for a trial continuance on the ground that his expert had "uncontrollable hiccups."

The court was not amused. Continuance denied.


Tuesday, September 12, 2006

The Well.

A well exists in courtrooms. It's not for drinking though. It's the space between the judge's bench and the counsel table. Lawyers are not to traverse the well whenever the judge is on the bench (and some courts forbid it when the judge is off the bench too). Judges get very cranky when their personal space--the well--is invaded, and have no reticence upbraiding violators.

Last Friday, I was in court and saw a hapless attorney go into the well during oral argument on a motion. The attorney was probably 60 years plus and presumably had been practicing for many years. He wanted to hand the court a document showing that he had filed his motion within the 6 month deadline. He failed to hand it to the clerk who then would hand it to the judge. Intead, he walked right into the well and attempted to hand it directly to the judge. The judge expressed his displeasure, and then ruled against the offending attorney. Coincidence probably.

This instance is only the second violation of the "well rule" I have observed. The first was a classic however. It occured during a trial several years ago. My opposing counsel not only went into the well, but he leaned over the counsel table to look at a document at my desk and pointed his posterior at the court. The court demanded an apology. Unfortunately, the attorney thought the offended one was me and apologized only to me. The court fumed. And then my opponent lost the case. Coincidence probably.

Saturday, September 09, 2006

Concert Review: Tool.

One might not expect a Tool concert to provide a Biblical object lesson. But last night at Staples Center, it did.

After a couple disciples asked Jesus to grant them the glory of sitting on his right and left in heaven, he admonished them:

“You know that those who are recognized as rulers of the Gentiles lord it over them; and their great men exercise authority over them.

“But it is not so among you, but whoever wishes to be great among you shall be your servant; and whoever wishes to be first among you shall be [servant] of all.” (Mark 10:42-44; NASB.)

This passage richly sets forth the powerful concept of servant leadership.

Maynard James Keenan (“Maynard”) amply demonstrated the counterintuitive and countercultural leadership style last night.

Regarded as the indubitable leader of Tool, he did not lord it over the crowd or his bandmates. To the contrary, Maynard thumbed his nose at rock-star conventions by almost hiding at the back of the stage shrouded in shadows and mystery. Even though the concert employed video screens, not once did they ever show Maynard’s face. In fact, despite two hours on stage, no spotlight ever highlighted his presence or countenance. As a result, the crowd—even in the front rows—was left to guess what he actually looked like.

I think the self-sacrifice or subjugation was intentional. The musicianship of the group was the focus as the lead guitarist and bassist were located at the front. The sound was plenty loud, but also captured the lyrics--except for the first song--and the precision of the instrumentation.

The group’s set up was unconventional. They artfully used the stage—a glossy substance much like a dry erase board, as a screen which reflected or projected the images flashed on it. There were no larger or high-rising screens behind the group.

The set list drew heavily from Tool's latest, 10,000 Days. Older material was almost nonexistent. That absence was not a problem as the new record has been a huge seller and contains some very strong material, especially “Vicarious.”

Two other observations about the unconventionality of the experience. Before the encore, the band did not leave the stage. Maynard just lay on his back. Then, at the appropriate time, they simply got up and took their positions to perform the encore. Second, the roadies were dressed in lab coats as if doctors or research scientists.

In sum, a moving aural and visual experience. Tool is probably the most distinguished group of its genre, and is working at the top of its craft.

UPDATE: Here's a review of Tool's May 3, 2007, concert in San Diego, California:

Thursday, September 07, 2006

Comedy at the Courthouse, Part III.

Before my oral argument in front of the Second District, I met my counterpart--an appellate specialist with about 30 years experience. He predicted his opening argument would be shorter than his 20 minute estimate because "there were no new cases decided," and the briefs contained all of the relevant points.

Mustering my best poker-face, I just nodded. I hope I didn't smirk when I nodded because I knew that he had missed a crucial, brand-new opinion handed down by the California Supreme Court just about a week earlier. Not only did this new decision pertain to one of the core issues in our appeal, but it also had the distinction of affirming the Second District--the very court we were in front of.

Since my counterpart lost the trial, and hence, was the appellant, he had to go first. As expected, he did not mention the new case. When it was my turn, I got to show off a bit by not only scooping opposing counsel, but also informing the panel about their distinction of being affirmed by the State's highest court. They seemed most gratified.

So, this was a two-fer. It pays to be prepared.

Wednesday, September 06, 2006


My hometown, Newport Coast, California, likes to exclude the unsavory.

For example, one will search in vain for a gas station or a fast-food establishment.

Its exclusionary techniques recently were found lacking, however.

While at a local fine eatery, with prices approaching $30 per entree, I observed a fellow and his wife waiting to be seated. The front desk offered afterdinner mints or hard candies that probably priced out at 37 cents a metric ton.

Evidently thinking they would even the score, this "Bonnie and Clyde" tandem scooped dozens--not once but twice--of these cheap candies into the wife's cavernous bag. Before their meal.

Folks, if free hard candies appeal to you in that volume, you might want to look for another restaurant--one with an outdoor speaker, a drive-through and perhaps a clown.

Friday, September 01, 2006

Comedy at the Courthouse, Part II.

Waiting for the courtroom to open its doors, the attorneys anticipating their oral arguments were emanating a tension that was palpable.

To add to the drama, the large building in which the Second District sits was making evacuation annoucements.

Since the building had a several story atrium in the center, the acoustics were not ideal. Even through the muddled and echoing sound, I heard in addition to "evacuation" the key words, "This is only a test" interspersed with ear-drum-splitting sirens.

However, the tight-as-a-drum gentleman standing next to me, who looked like Adrien Brody of The Pianist fame, evidently did not hear the qualifier, "This is only a test." With a panic-stricken countenance, he turned to me just before bolting to the exits and asked, "Did I hear correctly, did they just say 'evacuation'"?

I replied, "They did say 'evacuation', but I guess you didn't hear the part about it being a test." He looked only mildly relieved.

I guess that meant he would actually have to make his argument.