Legal Commentary

Protection of Animal Rights in Rome

I bet our home-grown animal rights activitists could only dream about this type of municipal legislation.

Published opinions: quality over quantity.

The Cal. Supreme Court's Advisory Committee on the Rules of Publication is  seeking comment on the proposed changes to the Rule 976 of the California Rules of Court (a rule that governs publication of the appellate court opinions). 

I filled out a survey on this issue a few months back, but am still very ambivalent as to whether the proposed changes make sense.  But for my money, the bigger question is not whether the courts of appeal publish enough, but what is the quality of what is published and what is not published.  I think most appellate practitioners would agree with me that the quality of our state published opinions is much more uneven than, let's say, in the 9th Circuit.   While there are justices who are very thorough in their analysis and immensly entertaining in their writing, many are not.  There are several key reasons for this and they would be a great topic for separate discussion.  But back to the issue of rate of publication: if the opinions were uniformly better in quality, there would not be a need to publish more.

Also, I am a bit leary of the committee's draft conclusion that the presumption in favor of publication is not necessary and that the issue of citation to unpublished opinions as persuasive authority should be studied in the future.  Again, the question for me is not so much whether we need to publish more, but whether status quo allows the courts to hide poorly written opinions behind a "non-published" status.  Based on my experience with criminal appeals, the quality of the opinions drops off in unpublished opinions affirming criminal convictions (presumably, with the idea of "no harm, no foul").   So, perhaps, allowing more opinions to be published and some reference to unpublished opinions may go a long way in keeping the courts "honest" and forcing them to write better-reasoned opinions.

Is it ever too late for an apology?

In my last year of law school, I wrote a research paper about the McMartin trial.  I remember being extremely outraged by what had been done to the McMartins by the judicial system.  In fact, after completing my paper and watching The Indictment, I seriously thought about finding them and apologizing on behalf of the "system."

Fast forward 8 years.  I just ran across an L.A Times article about one of the McMartin "victims" recanting his allegations and wishing to apologize for what he had done.  What is truly amazing is that the article seems to indicate that to this date, no one from the authorities (DA's office, social workers, doctors) had apologized to the McMartins.

The joys of litigation

Today, I won a motion for summary judgment for a defendant in one of my civil cases.  The kicker is that I bet another attorney in my office that I would lose said motion; in effect, I was betting against myself and lost.  'Nuff said.

On the down side, I had to baby-sit an Independent Medical Examination for another attorney in my firm and the plaintiff did not show up.  What a nasty experience, on so many levels. .. It seems that I have not met that many bad people in one day in a long time.  Give me a complex appeal, an emergency petition, a nasty appellate panel, or even a sure-fire loser msj any day of the week, but, pleeease, spare me from this stuff.  It destroys your soul and crushes your spirit.

Where have you gone, Class of 1998?

Last Friday, somewhere in the afternoon, a certain expectation of an upcoming holiday (which some of of you might percepitively call laziness) overtook me.  Sure, I had a coverage opinion to write, and two criminal appeals were vying for my undivided attention, but I had a writer's block. 

In a futile effort to overcome it, I decided to switch gears and check up on what some of my classmates are doing seven years after we all left Pepperdine.  California Bar Association helpfully provides a site, in which you can search for members' addresses.  The only obstacle to this effort was my apparently failing memory, which could not recall more than two dozen names (our of more than 200 people).

The results were rather interesting.  Two guys from law review predictably became partners in the LA office of Kirkland and Ellis.  Similarly predicably, our valedictorian clerked for Texas Supreme Court and ended up taking a teaching job at a religious law school in Montgomery, Al.  What was not predicable was him taking our Property professor with him:)  I wonder if the professor still remembers me (he should, I am the guy who was so bored in his class, I could not force myself to get up for an 8:00 a.m. discussion of Estates in Land). 

But, on we go.  Several of the guys I played basketball with in between classes ended up opening up small offices in LA.  A few ended up right next to me in San Francisco & the Bay Area.  Another girl went to work for a very large firm's office in Cleveland.  Cleveland?!  One of the guys I frequently hung out with unexpectedly took a job with the Kern Co. Public Defender's Office.  Another got married and went to work in Sweden.

I was sad not to find several names.  One was a very talented guy, who I was sure would have made a very good IP attorney.  Hopefully, he just went to practice in another state - I just cannot imagine him not passing the Bar.

Drafting contracts

Yesterday, a client asked me to take a look at a particular construction contract to interpre one of its provisions.  I've been pouring through it since yesterday, cursing and yelling along the way.  It is one of the worst contracts I have ever read.  Its language is ambiguous, dense, and full of legalese, so a person who can ascertain its meaning should be eligible for a Nobel Prize.  Ironically, it is a form contract presented in its industry as a blueprint for what a contract should look like.

The question that I have is why even draft such a contract?  If the client's goal is to have an enforceable written instrucment, the drafting attorney failed miserably.  The only way this contract is good is if the client's goal is to avoid its contractual obligation.

Which also brings up ethical questions: Does the lawyer drafting a contract have a duty to draft it in the way to make sure it is enforceable?  And, more importantly, if the client wants it drafted in a way to make enforcement problematic, does a lawyer have an ethical duty not to follow that instruction?  My answers would probably be "yes" to both questions, though I can see a fairly strong argument for the "no" camp.

Let the cats roam free.

I always thought that some of the more interesting / silly opinions are unpublished.  Here is a gem of an opinion I found while doing legal research for one of my civil cases.  It is cat-bite case, which generated three (!) separate opinions from a 3-justice panel. 

The facts in Goldshine v. Lafferty are not complicated.  Plaintiff and his wife were taking a leisurely walk on a street in Los Angeles.  While they were walking down the block, a cat approached Plaintiff, and rubbed on his leg.  Plaintiff petted the cat, picked it up, and discovered it had a tag with name “Tommy.”  Plaintiff put Tommy down and continued to walk.  The cat followed, meowing.  But when Plaintiff bent over and petted the cat behind the ear, true to its feline nature, the cat suddenly bit his hand, causing what the opinion describes as “serious personal injuries.”  Why a cat bite, which likely resulted in medical specials of no more than $100, generates a lawsuit against the cat’s owners, which was litigated through appeal, is beyond me.  But putting practical considerations aside, Plaintiff did file a strict liability / negligence lawsuit, which the trial court rightly tossed on a motion for summary judgment. 

The appellate court reverses in part and affirms in part, though the justices had trouble agreeing on the reasons for their decision.  My guess is that the author of the lead opinion, Justice Mosk (not THAT Mosk) never had any pets.  That’s the only reasonable explanation for his belief that the defendants might have a legal duty to keep their domestic cat tethered.  I am thinking of mailing Justice Mosk a CD with a song by a Russian rock group Bravo (very popular in the 1980’s Soviet Union), which talks about common cat behavior.  The only sensible opinion here is the dissent by Justice Grignon.  She does recognize that it is common for a domestic cat to “roam wild and free” and that it is not uncommon for a cat to bite and scratch when a stranger picks it up, for whatever reason.  Cats are kind of sensitive about their privacy and independence.

Come to think of it, the cat may actually have a claim against Plaintiff for assault, battery, and violation of its California constitutional right to privacy.  I believe one of my former law school classmates has a legal practice devoted to pets and pet-related issues.  I should call her and tell her about this case.

On a more serious note, I think this case should have been published and made a part of a law school textbook on Legal Ethics.  I would make it a required reading when discussing certain claims that should not be brought on the grounds that the claim is just plain stupid.

Name that bailiff

For those of us appearing in the Bay Area courts, let's take a straw poll of the meanest and most obnoxious security officers at the front door of the courthouse.  For my money, the main prize goes to the folks security the main courthouse of the San Mateo County Superior Court.   If you ever appeared there, you know what I mean.

An honorable mention goes to the folks at the Contra Costa County Superior Court in Martinez.