Judges Make Strawman Arguments Too!

"In Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 266-267, fn. 11, we expressed our frustration with law-and-motion judges who 'refuse to hold oral hearings on critical pretrial matters of considerable significance to the parties.... Fair warning: Both written and oral argument are complementary parts of good judging and elemental due process.'" (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 77.)

Yesterday, I became aware of a judge who eggregiously didn't get this "fair warning." If this had happened in one of my cases, I would have gone absolutely apeshit. The effect of what this judge did was raise and reject a "strawman" argument.

Get this: My friend's firm was opposing a motion. The court issued a tentative ruling denying the motion -- not on the substantive grounds raised by my friend, but on procedural defects in plaintiff's moving papers. That's a good thing, right? Another basis to oppose the motion, right? Wrong. Plaintiff's lawyer showed up at the hearing with supplemental evidence in an attempt to cure the procedural defects mentioned in the tentative. Well, the entire hearing was spent arguing whether this evidence was sufficient. When it looked like the judgie was finding the new evidence sufficient, my friend (the defense attorney) stated something to the effect that "if the court is inclined to overturn its tentative based on the new evidence, the motion still cannot be granted for the substantive issues raised in our opposition brief." The court apparently ignored this statement and went ahead and granted the motion, which took my friend off guard. Then, my friend explicitly asked to address the substantive issues of the writ of attachment, but of course by then the court had already ruled. Normally, there is no right to oral argument, but in this type of motion, oral argument is required, as shown in Hobbs, above.

My friend called me on the drive back to the office. I'm glad the opposing counsel got in the elevator ahead of him and he didn't have a chance to talk to her after the hearing -- he would've said some things he'd regret! I understand the frustration, though. According to my friend, there is no response to his substantive arguments. But the judgie wanted to grant the motion. Instead of addressing my friend's arguments head-on, she attacked a strawman. WTF.

world's most successful lawyer

Sir Lionel Alfred Luckoo (1914-1997), according to the Guiness Book of World Records, as a result of his obtaining 245 consecutive murder acquittals as defense counsel. Normally, one doesn't aspire to getting into the Guiness Book -- it usually means you have some freakish tendencies/abilities and no life. But, I wouldn't mind holding this particular record. I also wouldn't mind being knighted like Sir Lionel Luckoo....

Most noteworthy, however, Sir Lionel became the inspiration behind the name of attorney Lionel Hutz on The Simpsons. (The Hutz character was retired, out of respect, after the shocking death of Phil Hartman, the character's voice.)

Did that really need to be said?

I seriously take issue with the courts' lack of publishing opinions these days. I've found courts of appeal do not follow their own rules governing publications. I guess they're shy. It frustrates a litigator because the application of most if not all rules depends on the facts of your case. We waste so much money litigating issues that you just know have already been litigated, but did not result in a published opinion. Stare decisis, ever hear of it??

Federal courts have it right, they even publish trial court (district court) level opinions/orders! That's unheard of at the state level -- in Cali at least.

Well, I recently had to rely on a federal district court memorandum opinion -- because of the shocking lack of authority in Cali -- but noticed only the Westlaw cite is available b/c it's not published in the Federal Supplement. Instead of researching the exact rule on this, I did the lazy-man's "natural language" search in westlaw -- "citing cases not reported in federal supplement." In two secs flat I got a footnote that satisfies me:

"Opinions of the United States District Court that have not been published in the Federal Supplement are properly cited by this court as persuasive, although not precedential, authority." (In re Roderick (2007) 154 Cal.App.4th 242, 277, fn. 31; citing Schlessinger v. Holland America (2004) 120 Cal.App.4th 552, 559, fn. 4.)

Nailed it. Exactly one cut and one paste later I have a sexy foonote of my own and can cite my unpublished Massachusetts district court case with reckless abandon. The funny thing is though... the opinion would be merely persuasive, not precedential, authority even if published in the Federal Supplement! It's an out-of-state opinion, even if it were a California district court.

This reminds me of a quote from The Office:

Andy Bernard: So Tuna, when we get in there, let's do a really good job, ok?
Jim Halpert: Did that really need to be said?

And that explains the random title of this post.

Google v. Wexis -- the showdown!

Google recently released google scholar -- a free legal research service. It's a good start. Based on my quick review, the "shepardizing" function ("how cited" function) seems incomplete. Here is also a t0-do list for google scholar.

I wonder how concerned Wexis is right now? One blawg doesn't think google will give the Wexis duopoly a run for its money, but will instead be a game changer in the market for the "second city" cheap/free providers. Same.

One benefit of google over wexis -- google's outstanding searching capability. Although, I might be sad seeing the end of those crazy/quirky search terms, that've become a language in themselves. BTW, check out this deusey of a search term: HE((F.R.C.P. "FED.RULES CIV.PROC" CIV.PROC.RULE "FEDRULES CIVPROC" F.R.CIV.P. F.R.CIV.PRO. FED.R.CIV.P. FEDRCIVP FRCIVP /S 26(C)(7) (26 +4 (C)(7)) /P COMMERCIAL-INFORMATION))!