The em dash

I've cut back on my own use of the em dash as of late.

courts are to protect the MINORITY

There's been news that the "overwhelming" majority of Americans disagree with the Supreme Court's recent campaign finance law ruling. That's ok. That's why you have courts. I don't think -- at the time -- the majority of Americans agreed with the Court's civil rights decisions, either. The courts are to protect the minority. The legislative and executive branches will take care of the majority.

Not that I agree with the Court's recent decision. Or that I think corporations (the "minority" affected by the decision) need any help. I'm just saying it's ok, and actually a good thing, that the Court issued an opinion people don't agree with.

Chemerinsky visits San Diego

Erwin Chemerinsky is a dude. The law professor/Constitutional scholar/UC Irvine law dean visited San Diego on Friday, as reported in this interesting article.

One funny comment he made -- he thinks U.S. Supreme Court opinions should have word and page limits! That'll be the day! He makes a good point, the Court hears fewer cases these days, but their opinions are getting longer and longer. A page limit would let the court hear more cases....

It's no big deal when pseudoanonymous blawgers criticize the Court. It's always inspiring when high profile people do so publicly. I guess that's why Chemerinsky almost wasn't UC Irvine Law's dean -- he's polarizing.

Lawyers' worst instincts

The following exchange in dueling ex parte briefs pissed off the judge. Go figure!

Plaintiff's moving papers:

It is little wonder why attorneys are regarded with such disdain by the public at large given the duplicitous conduct of [defendant's] counsel and others of like ilk . . . . Argument in the alternative is one thing, but agreements and declarations in the alternative is nothing more than janus-faced mercenaries with no regard for one's role as an officer of the Court.

The Defendant's lawyer perceived this as just another indicator of the maleficence of the adversary. His opposition is not subtle:

[Plaintiff's] conduct is incredible. [Plaintiff] first notified [defendant] of its intention to file its discovery motion one day prior to filing the motion . . . . When [defendant's] counsel could not meet on only ten minutes' notice, [plaintiff's] counsel decided to go ahead and file its procedurally defective motion without meeting. [Plaintiff's] ambush tactics and utter disregard for [the local rules] is scandalous.

Well played you too. (Mission Power Engineering Company v. Continental Casualty Company (C.D. Cal. 1995) 883 F.Supp. 488.)

you can't drink your own kool-aid

I read an article several years ago stressing how important it is to remain objective as a lawyer. You have to be able to see both sides of an issue before you can be an effective advocate of one of the sides. I had to think about it, but it made sense.

Recently, because I "drank my own kool-aid," I had an artificially high expectation of winning a demurrer I wrote. At the time of deciding to bring the demurrer, I thought it was a tough argument. Then, by the time the reply papers and hearing prep was done, I thought, damn, we should win this! My own arguments convinced me. Well, the demurrer was overruled. I can't say it was necessarily the wrong result. (The judge said I had a "poor man's summary judgment motion" LOL.) I don't think drinking the kool-aid did anything in this instance, but you can imagine it would lead to skewed perspective/focus and tone in arguments you're trying to make.

how to email.

This is a good article on email etiquette.

WHO DAT NATION needs a continuance

This is great. I'm a big fan of NOLA and hope the Saints get the win next Sunday.

Typography for Lawyers

An interesting website. Style matters, too.

I disagree with the rule that there should only be one space between sentences. But, it comes from an interesting point -- the "two space" rule is obsolete b/c it stems from old-school typewriters, so now there's no need for two spaces. Relatedly, this is one reason I prefer the Georgia font to TNR (Times New Roman), because the Georgia periods are larger. Apparently, the TNR periods are so small b/c in the old days, the newspaper ink would expand, so the periods were designed overly small. Now, they're too small b/c obviously, computer screens don't involve expanding ink.

Texas Style Deposition

Orthogonal argument

A rule of thumb in legal writing is if you have to look up a word, it's the wrong word to use in your brief. The point being that you should KISS (keep it simple stupid) and not distract with fancy words.

Apparently it's a whole different story in oral argument. A law professor (go figure) arguing to the U.S. Supreme Court dropped the word "orthogonal," which means, right angle, unrelated, irrelevant. Because the Justices had no idea what the word meant, it turned into an "orthogonal" sidebar about the meaning of the word. This turned out to be a brilliant piece of advocacy, because it let the professor get a special connection with the Justices, and he had a couple jokes ready to go. I would bet money the professor had planned the whole exchange in preparing his oral argument.

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))!

Some [Craigslist] advice from your public defender

Back in April 2005, a public defender posted some free/hilarious advice on Craigslist, which is copied and pasted below. Although hilarious, I still think PDs who bitch about their clients have it wrong. That's what you signed up for, right? It's not like us civil lawyers complain about demanding corporate clients. (maybe I should insert *should* complain....) Who do you expect your clients to be? If they were rational/normal, would they really be in the position they're in?

However, the underlying advice is good. It is always soo frustrating when your clients seal their fates before you have a chance to help them. (If only they had us when the contract was drafted/negotiated, we could've avoided the ambiguity we're spending $$ to litigate!)

Another defense that criminals try to make, if drugs are found on them: "Officer, these aren't my pants!" It's actually a pretty good defense -- it's reasonable to believe that if you're homeless you'd be wearing someone else's pants that you found. And those pants happened to have drugs in them. The problem, apparently, is police have heard that defense too many times to ever believe it again.

-----

Here is the public defender's Craigslist advice:

First, let me say I love my job and it is a privilege to work for my clients. I wish I could do more for them. That being said, there are a few things that need to be discussed.

You have the right to remain silent. So SHUT THE FUCK UP. Those cops are completely serious when they say your statements can and will be used against you. There's just no need to babble on like it's a drink and dial session. They are just pretending to like you and be interested in you.

When you come to court, consider your dress. If you're charged with a DUI, don't wear a Budweiser shirt. If you have some miscellaneous drug charge, think twice about clothing with a marijuana leaf on it or a t-shirt with the "UniBonger" on it. Long sleeves are very nice for covering tattoos and track marks. Try not to be visibly drunk when you show up.

Consider bathing and brushing your teeth. This is just as a courtesy to me who has to stand by you in court. Smoking 5 generic cigarettes to cover up your bad breath is not the same as brushing. Try not to cough and spit on my while you speak and further transmit your strep, flu, and hepatitis A through Z.

I'm a lawyer, not your fairy godmother. I probably won't find a loophole or technicality for you, so don't be pissed off. I didn't beat up your girlfriend, steal that car, rob that liquor store, sell that crystal meth, or rape that 13 year old. By the time we meet, much of your fate has been sealed, so don't be too surprised by your limited options and that I'm the one telling you about them.

Don't think you'll improve my interest in your case by yelling at me, telling me I'm not doing anything for you, calling me a public pretender or complaining to my supervisor. This does not inspire me, it makes me hate you and want to work with you even less.

It does not help if you leave me nine messages in 17 minutes. Especially if you leave them all on Saturday night and early Sunday morning. This just makes me want to stab you in the eye when we finally meet.

For the guys: Don't think I'm amused when you flirt or offer to "do me." You can't successfully rob a convenience store, forge a signature, pawn stolen merchandise, get through a day without drinking, control your temper, or talk your way out of a routine traffic stop. I figure your performance in other areas is just as spectacular, and the thought of your shriveled unwashed body near me makes me want to kill you and then myself.

For the girls: I know your life is rougher than mine and you have no resources. I'm not going to insult you by suggesting you leave your abusive pimp/boyfriend, that you stop taking meth, or that your stop stealing shit. I do wish you'd stop beating the crap out of your kids and leaving your needles out for them to play with because you aren't allowing them to have a life that is any better than yours.

For the morons: Your second grade teacher was right -- neatness counts. Just clean up! When you rob the store, don't leave your wallet. When you drive into the front of the bank, don't leave the front license plate. When you rape/assault/rob a woman on the street, don't leave behind your cell phone. After you abuse your girlfriend, don't leave a note saying that you're sorry.

If you are being chased by the cops and you have dope in your pocket -- dump it. These cops are not geniuses. They are out of shape and want to go to Krispy Kreme and most of all go home. They will not scour the woods or the streets for your 2 grams of meth. But they will check your pockets, idiot. 2 grams is not worth six months of jail.

Don't be offended and say you were harassed because the security was following you all over the store. Girl, you were wearing an electronic ankle bracelet with your mini skirt. And you were stealing. That's not harassment, that's good store security.

And those kids you churn out: how is it possible? You're out there breeding like feral cats. What exactly is the attraction of having sex with other meth addicts? You are lacking in the most basic aspects of hygiene, deathly pale, greasy, grey-toothed, twitchy and covered with open sores. How can you be having sex? You make my baby-whoring crack head clients look positively radiant by comparison.

"I didn't put it all the way in." Not a defense.

"All the money is gone now." Not a defense

"The bitch deserved it." Not a defense.

"But that dope was so stepped on, I barely got high." Not a defense.

"She didn't look thirteen." Possibly a defense; it depends.

"She didn't look six." Never a defense, you just need to die.

For those rare clients that say thank-you, leave a voice mail, send a card or flowers, you are very welcome. I keep them all, and they keep me going more than my pitiful COLA increase.

For the idiots who ask me how I sleep at night: I sleep just fine, thank you. There's nothing wrong with any of my clients that could not have been fixed with money or the presence of at least one caring adult in their lives. But that window has closed, and that loss diminishes us all.

dealing with noob lawyers

One of the funnier urban dictionary posts I've seen. Basically, a "noob" is what non-internet-nerds call a "newbie." Yes, noobs can be frustrating (someone must've really pissed off the author of that post!). Noob attorneys are obviously a malpractice suit waiting to happen. They bill too much, they miss issues, and -- the frustrating part for opposing counsel -- they hinder progression/settlement of the case. They don't "know the drill." They make everything harder. They don't realize this is San Diego, a town more country than Burmingham, AL -- here, professional courtesies are mandatory. I've been dealing with a noob who should've settled a case long ago; instead, he's burning through attorney fees like crazy to collect a relatively small debt.

The obvious way to spot a noob attorney -- the state bar membership number. It's an objective pecking order for attorneys -- the lower the better. (There's nothing more humiliating than having your name listed on a pleading below a colleague with a higher/more recent bar number.) My noob has a 259XXX membership number, although I've been dealing with people in the 260000s. I must say, my 238XXX bar number is looking pretty damn respectable these days, if I don't say so myself. I've been making moves since 2005. Yes, I'm still an associate, but I've got the mileage -- and have had it for a while now -- so you can't mess with me.

Another way to spot a noob attorney is when they don't know the random legal lingo. My noob learned what Bates Stamping is the hard (embarrassing) way -- from me! In responding to a proposed stipulation I drafted, my noob's only comment was that "date-stamped" is misspelled as "bate-stamped." Of course, my email response was polite -- I let him save face by saying that the term should've been capitalized, and that's probably what led to his confusion. Classic for this guy. As I've said in previous posts -- you can't ASSUME the other side is making a mistake.

The point is: If you're a noob, don't try to "hang out your shingle" and go out on your own. Your freshly minted law degree and bar card don't qualify you to practice law -- think of the medical profession: you're a "doctor" if you graduate medical school, but you still need a residency etc.

If you're the employer of a noob: Don't give them authority/discretion that's above their pay grade. Let them bang out the briefs etc., but make them run even basic decisions up the ladder. They will soon get the feel for how your particular firm handles certain situations, because if you're any good, you have canned responses to various issues that come up.

A guide to writing sarcastic briefs

This is a good article. It makes the following points:

If an opponent's "tone is unnecessarily nasty, it's pointless to carry on about it. It makes you look like a whiner." Exactly. It's distracting and makes you look weak by avoiding those things we like to call the merits. Judges see crap briefs all day every day, so pointing out one more example isn't going to surprise anyone -- it'll just make yours more like "one of those."

Sarcasm often assumes that the judge already agrees with your side and will just go ahead and join in the abuse of the other party. You know what they say happens when you ASSUME something, don't you? (ass-u-me.)

If you're funny and good at it, then go for appropriate sarcasm/humor/color in your brief. "[O]ne giggle is worth a thousand underlinings, boldface types, and exclamation points." I.e., there's nothing wrong with making the judge chuckle, it will help her remember your point. This is obviously a matter of discretion. But that is exactly what makes a good lawyer -- to have the discretion/judgment to know what's persuasive. Anyone can pull the legal research, it's about knowing what arguments -- and methods of presentation -- will persuade and grab attention.

I've seen some hilarious examples of poorly done attempts that, for the time being, I will decline to post in order to preserve pseudo-anonymity.

case finally decides "full and complete" concept in interrogatories

Discovery (especially written) is a game. And the rules don't get enforced. Opposing sides rarely spend the money and time to bring a motion to compel. Even if ordered to provide further discovery responses, courts rarely impose sanctions. So, lawyers just have to be governed by their own standards of professionalism; a key line to draw is between asserting "hypertechnical" objections and gratuitously answering inappropriate/objectionable discovery requests.

One objection that used to be in my lineup was that a particular interrogatory is not "full and complete in and of itself," as required by California Code of Civil Procedure section 2030.060, subdivision (d), which provides in full:

(d) Each interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories unless it has been approved under Chapter 17 (commencing with section 2033.710 [form interrogatories approved by the Judicial Council]).

We took this provision to mean that an interrogatory is objectionable if it relies on definitions contained in previous interrogatories, or relies on a "preface or instruction." I've never used this objection -- in itself -- to not respond to an interrogatory, but still, combined with other valid objections, it could help justify not responding to a request. But this always felt like one of those "really?" objections. In fact, seizing on "at most an arguable technical violation of the rule" has been called "the type of gamesmanship and delay decried by the drafters of the [Discovery] Act." (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1287.)

Not surpisingly, Clement kills this objection and hit the lawyer with $6,000 in sanctions. I just can't believe Clement spent almost four pages talking about this throw-away objection (guess the court was pissed). Basically, Clement makes clear that the rule is simply meant to prevent parties from circumventing the "rule of 35" -- parties may only propound 35 specially prepared interrogatories. So, the rule is now that references to previous rogs, and outside materials/documents, is only prohibited where the effect is to undermine the rule of 35 (i.e., by asking a single rog about the "truthfulness" of a party's 10,000 deposition answers). (Id. at p. 1290.)

I agree with Clement and Professor Martin's take on Clement. Obviously. I mean who's gonna argue against the "practical approach" adopted by the court. But I still think you need to make your "nitpicky boilerplate" objections, or else they're waived. You just can't use them as an excuse to not answer the rog.

The joke behind the "rule of 35," however, is that parties don't need to resort to sub-parts and referencing outside materials to break the rule. All they have to do is file a form declaration stating the need for the additional discovery, and that the discovery is not sought for an improper purpose. (Code Civ. Proc., §§2030.040, 2030.050.) Then you can ask as many rogs as you want, placing the burden on the responding party to seek a protective order.

another maxim (not the magazine)

Expressio unius est exclusio alterius. According to this maxim, "Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted." (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 517.)

This footnote is great, showing the weakness of maxim quoting "masquerading" as law:

FN15. In United States v. Castro, 837 F.2d 441 (11th Cir.1988), the court emphasized the limitations of the maxim quoting the following excerpt: "Several Latin maxims masquerade as rules of interpretation while doing nothing more than describing results reached by other means. The best example is probably expressio unius est exclusio alterius, which is a rather elaborate. mysterious sounding, and anachronistic way of describing the negative implication. Far from being a rule, it is not even lexicographically accurate, because it is simply not true, generally, that the mere express conferral of a right or privilege in one kind of situation implies the denial of the equivalent right or privilege in other kinds. Sometimes it does and sometimes it does not, and whether it does or does not depends on the particular circumstances of context. Without contextual support, therefore, there is not even a mild presumption here. Accordingly, this maxim is at best a description, after the fact, of what the court has discovered from context."

(Abdullah v. American Airlines, Inc. , 969 F.Supp. 337, 348 (D.Virgin Islands 1997).)

Burn.

random latin phrase of the day

idem sonans (I-dem soh-nanz), adj. [Latin] (Of words or names) sounding the same, regardless of spelling.

This is a pleading doctrine that recognizes errors in parties' names are common; absolute accuracy in spelling names is not required in legal proceedings. Under the idem sonans doctrine, if the defendant is served with summons and complaint and defendant's name is pronounced the same way it is written in the complaint, defendant must answer. For example, the names Eliot, Elliot and Elliott are idem sonans.

This doctrine applies primarily for identification purposes. It does not apply where the opposing party has been misled to his or her prejudice. Nor does it apply where an innocent third party is involved.

Because we all like to sound smart. (Sources, Black's Law Dictionary and Rutter.)