Law Religion Culture Review

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

Wednesday, January 30, 2008

Chain Reaction.

I do enjoy trials. But if you can win without them, why not?

As a wrote about here, I won a case with a pretrial motion: (scroll down below this post).

As a result, the court entered judgment for my corporate client against the individual claiming he was owed over a quarter of a million dollars. In addition to ruling that the claimant could recover nothing from my client, the court also ruled that any award to the claimant would be outstripped by the damages the claimant caused my client.

Although my opponent didn't see it coming, this judgment set off a chain reaction.

In another case involving these parties, the corporation had sued the claimant for breaches of fiduciary duties to the corporation. This second matter was set for trial this month--about a month after the first.

So then I took the judgment in the first case and argued that there was no need for a trial in the second. I argued that legal principles called res judicata and collateral estoppel had already established the predicates for the breach of fiduciary duty lawsuit, and the court should simply enter judgment for the corporate plaintiff in excess of five million dollars.

The court agreed, and I obtained my second seven-figure judgment in two months.

Wednesday, January 23, 2008

Book Review: The Nine: Inside the Secret World of the Supreme Court.

Jeffrey Toobin's The Nine: Inside the Secret World of the Supreme Court (2007) provides a telling behind-the-curtain view of the nation's highest court.

In any arena, having a "backstage pass" can produce both positive and negative experiences. On the positive side, one can learn amusing anecdotes and observe personality quirks not accessible to the general public or audience. On the negative side, one can see the varnish coming off the performers or performance.

Through extraordinary access to the justices and more than 75 of their clerks (p. 342), this book also provides remarkable insight into the processes and people involved with the Supreme Court. More than once I surmised the only way a particular story could have found itself into Toobin's text was a justice (or his or her clerk) telling him. For examples, the book tells what Justice O'Conner privately did after resigning (she wept), and the substance of a sealed memo delivered from Justice Scalia to Justice Ginsburg about her proposed footnote in a Bush v. Gore opinion. "In a late draft of her dissent, Ginsburg drew on certain early press reports about the black vote in Florida to suggest in a footnote that, if there was any equal protection violation by the state, it was more likely by state and local authorities than by the Florida Supreme Court. The footnote sent Scalia into a rage, and he replied with a memo--in a sealed envelope, to be opened only by Ginsburg herself--accusing her of 'fouling our nest' and using 'Al Sharpton tactics.' Ginsburg backed down and removed the footnote." (pp. 173-74.)

The abortion, capital punishment, racially conscious affirmative action, and the Bush v. Gore election cases all receive meticulous attention. In each, Toobin explains how each justice's philosophy and predilections ultimately drive the result. In so doing, Toobin does not, as he cannot, leave the impression that this outcome-determinative judging is solely the domain of conservatives. Toobin correctly observes: "[Justice] Breyer's wan longing for stare decisis will stir few hearts. Breyer and his liberal colleagues (joined on this occasion by Kennedy) did not care about stare decisis when they voted in Lawrence v. Texas to overturn the Court's barely seventeen-year-old decision in Bowers v. Hardwick." (p. 339.)

Toobin also explores the Court's history and bruising confirmation battles, including an interesting twist regarding Harriet Miers' nomination: Miers' preferred choice for the High Court was Samuel Alito, who ultimately obtained the seat.

Toobin takes a step back to examine the political pressures brought to bear on the Court, including the religious right's shaping of the American political landscape. This narrative seems almost requisite in today's political books; for example, it's weaved into 2007's God's Harvard and Crazy for God (both reviewed here earlier).

On top of superb access, careful and exhaustive research, and a working knowledge of the material (Toobin's a Harvard Law graduate), Toobin's particular skill is his ability to deliver clean, crystalline and compelling prose. I've read a couple of other Toobin books, e.g. The Run of His Life (about O.J. Simpson's criminal trial) and Opening Arguments: A Young Lawyer's First Case: United States v. Oliver North (about Toobin's own involvement in this political case). As a result, I've come to believe, like James B. Stewart's works, almost anything Toobin writes is worthy regardless of topic.

While Toobin draws the curtain back to foment understanding of the Court, he ultimately exposes it as a political institution. Toobin indicts: "[W]hen it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. There is, for example, no meaningful difference between Scalia and Ginsburg in intelligence, competence, or ethics. What separates them is judicial philosophy--ideology--and that means everything on the Supreme Court." (p. 339.)

Likewise, Toobin writes: "It is folly to pretend that the awesome work of interpreting the Constitution, and thus defining the rights and obligations of American citizenship, is akin to calling balls and strikes. When it comes to the core of the Court's work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases." (p. 338.) (Emphasis supplied.)

I can think of no more fitting sentiment on this thirty-fifth anniversary of Roe v. Wade.

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Sunday, January 20, 2008

Chargers Redux.

The Chargers' season ended today. As a tribute, I recycle a post about my visit to the Chargers/Rams game last season:

Saturday, January 19, 2008

Movie Review: Charlie Wilson's War.

Much like The Departed (reviewed here: and then scroll down below this post), Charlie Wilson's War's promise emanates from its assembly of stars.

Tom Hanks, Phillip Seymour Hoffman and Julia Roberts supply the acting chops. Aaron Sorkin brings the writing credibility. And Mike Nichols furnishes the directing skill.

With all these luminaries, it's a "can't miss", right? Not exactly.

While the movie hits a target, it doesn't quite pierce the bulls-eye. Based on a true episode, it offers the story of a Texas Congressman who uses his power over the nation's purse to fund Afghans' resistance to Soviets' occupation of their country in the 1980s. The movie never really explains Wilson's (Tom Hanks) transformation from the go-along, get-along insignificant Congressman to a engaged, effective, transformative one. While there is a quick shot of Wilson at a refugee camp, it's doubtful that this singular event changed Wilson's motives, message and methods, although plausible.

Also, while the movie lauds Wilson as a warts-and-all type hero, I am not sure that Wilson is even a hero. He essentially spent other people's money in hidden appropriation bills (increasing military funding for Afghan rebels from five million to $500 million), even confessing that what he did came dangerously close to violating the Logan Act. Moreover, the movie's epilogue basically admits that arming these folks against one enemy ultimately backfired against the United States.

The movie also displays Sorkin's trademarked witty dialogue, but I actually thought it would be more pervasive. Hoffman's character supplies most of it, depending heavily on a comic use of profanity.

Nichols' direction serves as an exemplar for brevity. The film concludes under one hour and 40 minutes and moves briskly. However, I thought the Afghanistan battle scenes look rather inexpensive, especially given its $70 million budget. For example, the movie employs a fade-to- fire effect that's simply a fade-to-black with a lighter hue.

Charlie Wilson's War earns a B+.

Friday, January 11, 2008

Take This Food and Stuff It.

Former Supreme Court Justice Sandra Day O'Connor set high fitness standards for her clerks.

"Male clerks planning weddings were ordered to get in shape. (One stuffed an ice cream cone in his desk drawer so she wouldn't see it.)" (J. Toobin, The Nine: Inside the Secret World of the Supreme Court, p. 39; emphasis supplied.)

This anecdote reminded me of an earlier food-stuffing incident. At my first law firm, one of the older associates showed me the ropes. Among other things, he told me about the firm's lore. He informed me that a few years before I arrived the firm employed a young attorney who evidently cowered at the sight of the senior partner.

One day this junior attorney thought he would enjoy a pizza in the law firm's library. The library had a door, and he apparently thought he would be able to eat in privacy. Unfortunately for the employee, after a couple of slices of pie, the feared name partner came into the room. Not wanting the boss to see the pizza, the eater frantically thrust the pizza box onto the top of the book shelves. He didn't realize there was a hollow space where two fixed shelves joined at a ninety degree angle. The box slid down into the oblivion of this space.

After I composed myself, I asked my new quasi-mentor what happened to the pizza. He said it was still there. He said the pizza guy tried a panoply of things to retrieve his treat including a paper clip fishing line. Nothing worked so he left it.

Part rank curiosity and part scientific inquiry into the properties of food mold impelled me to take a look at the years-old pizza. I saw the ceiling was comprised of removal tiles. I thought that if we could temporarily move the ceiling tile aside we could fit a broom down into the space and then press the box against the wall and through friction get the box out of there. It worked.

To my utter amazement, and eventual distrust of fast-food, the pizza's cheese was mostly a clear substance and the other toppings resembled their original form. There was no cloud of mold on it.

Glad it wasn't an ice cream cone.

Sunday, January 06, 2008

Faint Praise.

At a local full-service dining establishment, its menu trumpeted the following along the top:

"Our desserts separate us from mediocrity."

Someone thought he or she was being clever, but in reality conveyed the message that apart from these desserts they are mediocre.

Back to the marketing drawing board folks.

Tuesday, January 01, 2008

State Court Solomonic Sagicity, Part II.

Our favorite state court judge is at it again. In a case I'm not handling here's his latest: