Law Religion Culture Review

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

Friday, December 29, 2017

Year In Review, 2017.

Books Read (in order)
1. Influence: The Psychology of Persuasion by Robert B. Cialdini, Ph.D. (2007 rev ed.)
2. A Life in Parts by Bryan Cranston (2016)
3. The Small Big: Small Changes That Spark Big Influence by Steve J. Martin, Noah J. Goldstein and Robert B. Cialdini (2014)
4. Thinking, Fast and Slow by Daniel Kahneman (2011) [cd unabridged]
5. The Subtle Art of Not Giving A #%&@: A Counterintuitive Approach to Living a Good Life by Mark Manson (2016)
6. Blood Meridian by Cormac McCarthy (1985) [cd unabridged]
7. The Kingdom of Speech by Tom Wolfe (2016)
8. Life Is a Series of Presentations by Tony Jeary with Kim Dower and J.E. Fishman (2003) [cd unabridged]
9. The Magnolia Story by Chip and Joanna Gaines with Mark Dagostino (2016)
10. Survival in the Killing Fields by Haing S. Ngor with Roger Warner (1987)
11. Filthy Rich: - The Shocking True Story of Jeffrey Epstein by James Patterson and John Connolly with Tim Malloy (2016) [cd unabridged]
12. A Perfect Union of Contrary Things by Sarah Jensen with Maynard James Keenan (2016)
13. The Greatest Comeback: How Richard Nixon Rose from Defeat to Create the New Majority by Patrick J. Buchanan (2014)
14. Don't Sleep, There Are Snakes: Life and Language in the Amazonian Jungle by Daniel L. Everett (2008)
15. The Undoing Project: A Friendship That Changed Our Minds by Michael Lewis (2016) [cd unabridged]
16. Powerhouse: The Untold Story of Hollywood's Creative Artists Agency by James Andrew Miller (2016)
17. The Fourth Turning: An American Prophecy by William Strauss and Neil Howe (1997)
18. The Gene: An Intimate History by Siddhartha Mukherjee (2016)[cd unabridged]
19. Cities of Gold: A Journey Across the American Southwest in Pursuit of Coronado by Douglas Preston (1992)
20. The Upstarts: How Uber, Airbnb, and the Killer Companies of the New Silicon Valley Are Changing the World by Brad Stone (2017) [cd unabridged]
21. The Everything Store: Jeff Bezos and the Age of Amazon by Brad Stone (2013) [cd unabridged]
22. The River of Doubt: Theodore Roosevelt's Darkest Journey by Candice Millard (2005)
23. The Lost City of the Monkey God: A True Story by Douglas Preston (2017) [cd unabridged]
24. Dixieland Delight: A Football Season on the Road in the Southeastern Conference by Clay Travis (2007)
25. The New Frugality by Chris Farrell (2009) [cd unabridged]
26. How to Murder Your Life by Cat Marnell (2017)
27. X by Chuck Klosterman (2017)
28. Everybody Lies: Big Data, New Data, And What The Internet Can Tell Us About Who We Really Are by Seth Stephens-Davidowitz (2017)
29. The Year of Magical Thinking by Joan Didion (2005) [cd unabridged]
30. The Social Animal by David Brooks (2011)
31. The Stranger in the Woods: The Extraordinary Story of the Last True Hermit by Michael Finkel (2017)
32. Slouching Towards Bethlehem by Joan Didion (1968)
33. Running With the Devil by Noel E. Monk with Joe Layden (2017)
34. Van Halen Rising by Greg Renoff (2015)
35. The Book of Joy: Lasting Happiness in a Changing World by Dalai Lama, Desmond Tutu with Douglas Abrams (2016)[cd unabridged]
36. Illusion of Justice: Inside Making a Murderer And America's Broken System by Jerome F. Buting (2017)
37. Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments by Richard A. Posner (2017)
38. Blackwater: The Rise of the World's Most Powerful Mercenary Army by Jeremy Scahill (2007) [cd unabridged]
39. Making Sense of the Alt-Right by George Hawley (2017)
40. Astrophysics for People in a Hurry by Neil deGrasse Tyson (2017) [cd unabridged]
41. What Is the Bible? by Rob Bell (2017)
42. The Chickens&%# Club: Why the Justice Department Fails to Prosecute Executives by Jesse Eisinger (2017)
43. Devil's Bargain: Steve Bannon, Donald Trump, and the Storming of the Presidency by Joshua Green (2017)
44. Washington's Crossing by David Hackett Fischer (2004) [cd unabridged]
45. Blindfolds Off: Judges on How They Decide by Joel Cohen (2014)
46. Gilead: A Novel by Marilynne Robinson (2004) [cd unabridged]
47. Jesus: A Biography from a Believer by Paul Johnson (2010)
48. Bannon: Always the Rebel by Keith Koffler (2017)
49. Win Bigly: Persuasion in a World Where Facts Don't Matter by Scott Adams (2017)
50. American Radical by Tamer Elnoury with Kevin Maurer (2017)

Losses Sustained
John Wetton
Chris Cornell
Chester Bennington
Malcolm Young
R.C. Sproul

Book of the Year
Survival in the Killing Fields by Haing S. Ngor with Roger Warner (1987)
Honorable Mentions: Win Bigly: Persuasion in a World Where Facts Don't Matter by Scott Adams (2017) and
Influence: The Psychology of Persuasion by Robert B. Cialdini, Ph.D. (2007 rev ed.)

Concert of the Year

Film of the Year

Trial of the Year

"Family Fued"

My client was the youngest of four brothers. After their mother died, they agreed that he would administer their mother's estate, for which there was no will or trust. As administrator, he submitted a proposed accounting. In response, his two eldest brothers brought a lawsuit against him and his wife, alleging that they committed financial elder abuse on their mother and that my client breached his fiduciary duty. They observed that the accounting did not contain a joint bank account between my client and her mother, the net rental income generated from her rental property for about eight years preceding her death, nor the proceeds from a line of credit deposited into the joint account. The arrangement for the joint account and management of the rental property was approved by all the brothers when he took over management of their mother's rental property (from the second brother who also had a joint account with his mom during his tenure as property manager) as well as her trusted financial advisor. They produced documents and witnesses from about 10 years ago (at the time of the opening of the joint account and approval of the arrangement) allegedly indicating that the mother was severely hallucinating and lacked capacity to take care of herself or to make any decisions, and therefore, they alleged that my client and his spouse visited financial elder abuse on his mother by taking net rental income from a house owned by the mom that was deposited into the joint bank account. All dressed up, the claim was about a million dollars.

Following a lengthy trial in which experts and percipient witnesses testified as to the mother's mental condition at the time the joint account was set up, the trial court found that, while the mother had fluctuations in her cognitive state, Petitioners had not shown that she lacked capacity to make any of the decisions that she made the decision to allow my client to use any funds that were left over after those of the rental house were taken care of and the mother's needs were taken care of. The court found the (nonparty) brother's testimony credible that he had conversations with his mother about the joint account and her intentions that my client could and his family could use the funds as he saw fit after payment of expenses. After my particularly eviscerating cross-examination of their expert doctor, the court did not find their doctor's analysis as to the mother's capacity to comport California Probate Code Section 811's factors. The court found it "completely logical and reasonable" that the mother wanted any surplus funds to go to my client, his wife and their daughter (the decedent's granddaughter) with whom she had a continuing close and substantial relationship.

Furthermore, the court ruled that my clients did not exert undue influence upon the mother. The court stated that what was clear was that the mother did not operate her family relationships like a company, and reasonably took into account each of her son's needs at their time of need. In sum, the court found that my clients did not take unfair advantage of their mother under the law of undue influence or otherwise meet the standard for financial elder abuse. Also, the trial court ruled that there was no breach of fiduciary duty committed by my client because he included all assets of the estate in his accounting, and any others that the other brothers' were complaining about were not assets of the estate.

The case was ruled in favor of my clients on every point, including approval of the accounting. The suing brothers recovered exactly nothing on their claims.

Appeal of the Year

"Beware of the Lawyer"

A lawyer received documents from his client and distributed them to other lawyers in furtherance of a case in which he was attorney of record. Two corporations alleged that these documents were "stolen", contained trade secrets and were obligated by the client's contract with them to be returned.

The corporations sued the lawyer (but not the client). We brought a special motion to strike the lawsuit under California's anti-SLAPP law. (C.C.P. Section 425.16.) The trial court agreed and dismissed the case in its entirety and awarded attorneys' fees. The corporations appealed.

At the oral argument on appeal, one of the justices said that he had “substantial concern” that Appellants “did not even begin to make” the factual showing of the elements of the prima facie case against the lawyer. He observed that the trial judge addressed Appellants’ attempt with a mere 10 lines in its ruling mostly citing to the unverified complaint. The justice asked the corporation's attorney where in Appellants’ submissions was their evidence tied to the elements of the claims? Counsel conceded their "showing was not complete.”

The justices also expressed concern that the case was barred by the litigation privilege, meaning the attorney had the right to use the documents for litigation purposes (even other cases). Another justice stated to Appellants' counsel “many of your claims are deficient.” And moreover, there are “defects that could not be cured.” The corporations' counsel conceded: “If the defects cannot be cured, then we lose.”

While the opinion is still pending, one does not need to be psychic to read the "tea leaves" here. A rough day at the office for the Appellants.

Athletic Achievement of the Year
Two Summits, One Day (Mojeska and Santiago Peaks, together: Saddleback Mountain) [33 miles, approximately 5000' elevation gain]