Co-contributor Marc Alexander, who publishes the blog California Mediation and Arbitration, explains in the latest volume of California Litigation, that arbitration has become one more "hot button issue" for the U.S. Supreme Court Justices to disagree about. The article is republished here with the permission of the California State Bar.
Wow, seems like just yesterday. On May 11, 2016, we celebrate eight years of activity on this blog. Hope you readers have found it helpful. We also extend Happy Mother’s Day to all of you Moms out there.
Below: "First Lady of the United States of America, Michelle Obama, Prince Harry of Wales, and Jill Biden help military children create Mother's Day cards and other crafts in the State Dining Room of the White House on 9 May 2013. The children presented the gifts to their mothers during the Joining Forces Military Mother's Day Tea in the East Room." From Wikipedia entry for Mother's Day.
Salem Village, Massachusetts Was The Instigating Place.
The October 2015 edition of the ABA Journal has an interesting articleabout the history of witch trials in Salem Village (now, Danvers) and other nearby towns in Massachusetts Bay Colony during English rule.
In May 1692, William Phips, the newly appointed governor of the Massachusetts Bay Colony, commissioned a court of oyer and terminer to adjudicate accusations of witchcraft sweeping through the area. (Oyer and terminer allowed jurisdiction to be conferred upon a grand jury type of tribunal to adjudicate criminal offenses, often carrying the death penalty as the witch trials obviously did.)
These witch trials through the court of oyer and terminer allowed the sitting members to consider “spectral evidence”—testimony about paranormal phenomena. Hangings then began for convicted persons; between August 5 and September 17, 1692, 20 defendants were tried and condemned for witchcraft (19 were hung and 1 was pressed to death under a rock for refusing to confess).
However, in early October 1692, Governor Phips declared the use of spectral evidence illegal in the court of oyer and terminer, eventually disbanding the court altogether on October 29. Those awaiting trial were released and those condemned to death were pardoned. In 1711, the Massachusetts legislature voted to absolve those accused of witchcraft and offered restitution. In 1957, the Commonwealth of Massachusetts apologized for what had taken place in Salem and adjoining villages under color of law.
Case of Conscience Concerning evil Spirits by Increase Mather. (Boston, 1693). Library of Congress.
We say thanks to all of our readers and followers. Our inaugural post was on May 11, 2008, so this looks like today is our seventh blog “birthday.” Can’t believe it, and keep following us – whoever you are! – and thanks for doing so.
Mary Harris “Mother” Jones (1837-1930) cuts her birthday cake. “Pray for the dead and fight like hell for the living.” -- attributed to Mother Jones.
Daily Journal Publishes Co-Contributor Marc’s April 17, 2015 Article On The Perils Of Blogging
Published by The Daily Journal on April 17, 2015, co-contributor Marc’s article on the legal perils of blogging will interest those of you who blog, or who are considering blogging. With the permission of the Daily Journal, we are making it available to our readers. Click here if you wish to read it. Note you may have to rotate the article in your viewer or enlarge the text to make it easier to read.
Unfairness of Using Privilege as a Shield Justified Writ Issuance.
In Anten v. Superior Court (Weintraub Tobin Chediak Coleman Grodin),Case No. B258437 (2d Dist., Div. 1 Jan. 30, 2015) (published), the appellate court issued writ relief in determining that a nonsuing, joint client cannot shelter relevant communications as privileged in a suit alleging breach of duty by a suing, joint client against the attorneys formerly representing the joint clients.
Fundamental fairness was a big reason for so holding. “For example, if one of two joint clients breached an attorney fee agreement but the other joint client did not, and the attorney sued the breaching client, then it would be unjust to allow the nonbreaching client to thwart the attorney’s suit by invoking the privilege to prevent introduction of the fee agreement itself. Moreover, the risk of collusion between the joint clients would be substantial.” (Slip Op., p. 7.)
If one goes by the 2013 Court Statistics issued by the Judicial Council (using fiscal year 2012 as an indicator), the courts at all levels in California are doing a good job of managing cases and disposing of appellate causes—somewhat surprising given financial cuts. We provide some of highlights that caught our attention for the 2012 fiscal year.
Published court of appeal statewide publication rate: 8%; however, rate went up to 17% for original proceedings (writs).
Number of court of appeal decisions depublished: 14.
Court of appeal disposition percentages: for all appeals – 87% affirmed; 10% reversed; and 3% dismissed. For civil appeals – 79% affirmed (includes without and with modifications); 18% reversed; and 3% dismissed.
Original proceeding disposition rate: of the statewide total at court of appeal level, only about 6.3% were disposed of through written opinions (published and unpublished, with only 17% being published). Means over 93% were summarily denied or disposed of through a shorter written order.
Supreme court petition for review grant rate: 4%.
California Supreme Court Room looking southeast. Tom Zimmerman, creator. Library of Congress.
Superior court clearance and disposition rates: superior court dispositions kept up with filing rates and superior courts kept up with state-mandated disposition schedules.
Civil court disposition rates in superior courts: 81% resolved before trial; 19% resolved after trial. Of the trials, 4% were jury, 79% were bench (court), and 17% were trials de novo.
It is with sadness that we report that Raymond G. (Ray) Alvarado recently passed away. He is a founding member of AlvaradoSmith, where co-contributors Marc and Mike have practiced since February 2008. Ray is a giant in the Orange County legal community and a “name” partner/shareholder in several firms. Ray had a ready smile, liked people, and loved the law. We will miss him.
In a June 14, 2014 post, we provided a Historical Footnote about attorney Florence McAuliffe, the McAuliffe in Heller, Ehrman, White & McAuliffe. “In 1929,” we stated, “she negotiated the financing for the construction of the San Francisco – Oakland Bay Bridge.” It did seem worth noting that a founding partner of that great law firm had been a woman. Well, it turns out that Florence McAuliffe was a “he”, not a “she.”
HAT TIP to Gabriel McAuliffe of Sacramento, the great-nephew of Florence McAuliffe (1886-1957). Gabriel McAuliffe also informed us that his great-uncle lived in the Olympic Club in San Francisco, and was one of the early benefactors of Saint Anthony’s Dining Room for the homeless in San Francisco. Thanks, Gabriel.
1934. Cutting the cake at Pres. Roosevelt’s Birthday Ball. Library of Congress.
There is an adage that time speeds up as you age. We can attest to that. This fee blog is six years old, with the inaugural post occurring on May 11, 2008. We thank all of our readers and followers for their support, and hope we have helped in some way. -- Marc and Mike
It Also Has A Good Discussion of the Difference Between Holdings and Dicta.
Although not involving fee issues, we had to share two aspects of Justice Yegan’s eloquently written opinion in Marriage of Boswell, Case No. B249141 (2d Dist., Div. 6 Apr. 28, 2014) (published).
The first aspect was a summary of appellate review standards. “Mother has no appreciation for the rules on appeal, i.e. the substantial evidence rule and the rules relating to the exercise of discretion by the trial court and the review thereof by the Court of Appeal. (Estate of Gilkison,  65 Cal.App.4th [1443,] at pp.1448-1449) These rules are well known. They need not be repeated. We hold that, where, as here, the family law court makes a fair and equitable ruling on contested issues of fact, its express or implied factual determinations, are binding on appeal. The appellate court may not substitute its discretion for that of the trial court unless the appellant can demonstrate, as a matter of law, that the trial court’s judgment is arbitrary, capricious, whimsical, or exceeds the bounds of reason. (Id. at pp. l448- l449.)” At another point, he wrote: “We do not judge credibility on appeal. An adverse factual finding is a poor platform upon which to predicate reversible error. ([Marriage of Greenberg (2011) 194 Cal.App.4th 1095,] at p. 1097.) ‘We sit as a court [of law] to review errors of law and not [claimed] errors of fact.’ (Achen v. Pepsi-Cola Bottling Co. (1951) 105 Cal.App.2d 113, 125.)”
The second aspect is a nice discussion of the difference between holdings and dicta—you will enjoy it.
Annual Coverage, Contractual Coverage, Statutory Coverage (Under Some Statutes), And Multiple/Possible Exposure Coverage Available.
Because most standard insurance policies do not cover adverse attorney’s fees awards, we have informed you over the last few years about a suite of litigation insurance policies designed to protect plaintiffs and defendants from the risk of having to pay their adversary’s attorney’s fees in litigation, in arbitration, and before a regulatory body. The products are carried by Sonora Risk Insurance Agency.
Sonoma Risk has now expanded its Attorneys’ Fees Risk Insurance (AFRI) suite of products, which initially covered only contract disputes (Contract Litigation Insurance or CLI), to also include these products: Annual Attorney’s Fees Edge (AAFE) – insurance coverage for fee awards with coverage limits beginning at $10,000 and going up to $100,000 to cover situations even before litigation is commenced on an annual basis; Statutory Attorneys’ Fees Edge (SAFE)—coverage for the risk of paying an opponent’s attorney’s fees arising out of many federal or state statutes; and Court Awarded Annual Attorneys’ Fees Edge (CAFE)—coverage for the risk of paying fees where there are multiple exposures of paying an adversary’s attorney’s fees or where the exposure of loser pays is a possibility, but not yet clearly identified.
It looks like the venues being covered has expanded, too: state court; federal court; cases filed in arbitration; and cases before a regulatory body.
Appeals Decided At A Low Number From 2005; Reverse Rate Only 18%; Most Appeals Decided Within 15 Months.
HAT TIP--We give a “hat tip” to fellow blogger Greg May (The California Blog of Appeal) for providing some summaries of the “2013 Court Statistics Report: Statewide Caseload Trends 2002-2003 through 2011-2012,” focusing mainly on fiscal year 2012 end results for California appellate courts.
Here are his highlights:
1. Number of contested appeals per justice -- 209, lowest number since 2005.
2. Appeal type distributions -- more than 40% criminal; a little over 20% juvenile dependency.
3. Civil appeal reversal rates -- 18%.
4. Appeal “Lag Time” -- 90% appeals resulted in written opinions within 15 months from filing of the notice of appeal.
According to Law.com, the Survey of Law Firm Economics showed firms with more than 150 attorneys had an 8.5% increase in revenues per attorney this year as compared with the same period through third quarter 2012. However, firms or offices with 1-9 attorneys saw revenue decrease 8% over the same time frame.
To demonstrate that the economy is improving somewhat, for firms of all sizes, per-lawyer income increased by 1.1% in 2012, compared to a 4.2% decrease in 2011.
The August 2013 issue of The ABA Journal list these as the 25 greatest law novels ever (actually 26, because 25 drew a tie between two books):
25. (tie) Old Filth by Jane Gardam (2004)
25. (tie) The Ox-Bow Incident by Walter Van Tilburg Clark (1940)
24. The Fountainhead by Ayn Rand (1943)
23. Anatomy of a Murder by Robert Traver (1958)
22. The Handmaid’s Tale by Margaret Atwood(1985)
21. The Count of Monte Cristo by Alexander Dumas (1844)
20. The Firm by John Grisham (1991)
19. QB VII by Leon Uris (1970)
18. Their Eyes Were Watching God by Zora Neale Hurston (1937)
17. The Caine Mutiny by Herman Wouk (1951)
16. A Time to Kill by John Grisham (1989)
15. A Tale of Two Cities by Charles Dickens (1859)
14. The Stranger by Albert Camus (1942)
13. Native Son by Richard Wright (1940)
12. Bartleby the Scrivener: A Story of Wall Street by Herman Melville (1853)
11. The Paper Chase by John Jay Osborn Jr. (1971)
10. An American Tragedy by Theodore Dreiser (1925)
9. The Bonfire of the Vanities by Tom Wolfe (1987)
8. The Scarlet Letter by Nathaniel Hawthorne (1850)
7. Presumed Innocent by Scott Turow (1987)
6. Billy Budd by Herman Melville (1924; left unfinished at his death in 1891)
5. Les Miserables by Victor Hugo (1862)
4. The Trial by Franz Kafka (1925)
3. Bleak House by Charles Dickens (1852)
2. Crime and Punishment by Fyodor Dostoevsky (1866)
1. To Kill A Mockingbird by Harper Lee (1960)
Grisham, Dickens, and Melville were authors having two books on the list.
U.S. District Judge Otis Wright Blasts Copyright Suing Attorneys.
In Ingenuity 13 v. John Doe, U.S. District Judge Otis Wright (C.D. Cal.) had this to say in a 2013 decision: “Plaintiffs have outmaneuvered the legal system. They’ve discovered the nexus of antiquated copyright laws, paralyzing social stigma and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video ... For these individuals, resistance is futile. ... So now, copyright laws originally designed to compensate starving artists allow starving attorneys in this electronic-media era to plunder the citizenry.”
Wage/Hour Claims Soar in Federal Courts Since 2008.
Seyfarth Shaw’s Wage & Hour Litigation Blog, in a May 9, 2013 post, reports that since 2008, the number of wage/hour claims filed in federal court has steadily increased: 5,302 actions filed in 2008; 5,644 in 2009; 6,081 in 2010; 7,008 in 2012; and 7,764 so far in 2013.
Changing Expectations of Pre-Law Students.
Kaplan Test Prep survey of April 11, 2013 informs us that 50% of pre-law students expect to use their law degree in a nontraditional legal job.
State Court Decision Differs from Federal Opinions on the Topic.
Although this is maybe a little off topic, Walley v. Superior Court (Hoover),Case No. G048340 (4th Dist., Div. 3 July 24, 2013) (unpublished) is an interesting writ proceeding where an attorney challenged a lower court order to disclose invoices and accounting documents transmitted to him during his representation by another outside law firm in a case filed by a third party, putative “client” against the writ-seeking attorney.
Attorney prevailed in the writ proceeding, in a by-the-court decision endorsed by Justices O’Leary, Fybel, and Thompson.
Plaintiff suing for defendant attorney’s breach of fiduciary duty served a custodian deposition subpoena on a law firm that had represented defendant attorney earlier, seeking “[a]ll accounting records, including account receivable and billing system records, which are related to [the earlier arbitration action in which plaintiff recovered an award against attorney].” Attorney claimed this information was attorney-client privileged vis-a-vis the law firm representing him earlier. The lower court disagreed, denying a motion to squash and ordering production within 30 days
The appellate court overturned the lower court ruling, after staying the production order while the writ proceeding wound through the system.
The attorney-client privilege indeed prevailed. “The parties have not cited any California case, and we have found none, which specifically analyzes whether attorney accounting records transmitted to the client constitute attorney-client confidential communications within the meaning of Evidence Code section 952. While a few cases assume attorney billing statements are confidential communications in other contexts, no California case has examined the application of the privilege to such documentation and communications in the context of discovery,” citing cases approving submission of redacted billings in order to uphold the privilege in attorney fee proceedings. (Slip Opn., pp. 9-10.) The confidential nature of the billings were buttressed by the fact the Legislature, in Business and Professions Code section 6149, mandated that written fee contracts between clients and attorneys are confidential communications.
Walley also did not find persuasive federal cases holding billings were not confidential in nature. Most importantly, in a footnote, the appellate court found that all of the cited cases predate the enactment of Business and Professions Code section 6149, with California law “trumping” federal law on the subject.
BLOG OBSERVATION: This really is a first impression case. Its reasoning and cited cases on fee proceedings--Banning v. Newdow, 119 Cal.App.4th 438 (2004) and Smith v. Laguna Sur Villas Community Assn., 79 Cal.App.4th 639, 645-646 (2000)--would be useful in supporting submission of redacted fee billings in support of a fee petition, if the redactions are done selectively to safeguard confidential attorney-client communications. For published cases or previous posts on unpublished cases relating to redacted billing submissions, see Jaramillo v. County of Orange, 200 Cal.App.4th 811, 829-830 (2011) [4th Dist., Div. 3; Rylaarsdam, J.] [condoning use of more generalized billing entries if attorney-client privilege jeopardized]; Johnson v. Bd. of Education of Bakersfield City School Dist., Case No. F059702 (5th Dist. March 29, 2011) [unpublished, reviewed in our March 31, 2011 post] [error for lower court to discount fees altogether where heavily redacted billings were submitted]; City of Lake Forest v. Lake Forest BodyCentre, Case No. G043301 (4th Dist., Div. 3 Feb. 9, 2012) [unpublished; Fybel, J., reviewed in our Feb. 10, 2011 post] [remand where severely redacted billings used so no meaningful review was possible]; Fuller v. Monogram Real Estate, Case No. G044808 (4th Dist., Div. 3 Dec. 19, 2011) [unpublished; O’Leary, A.P.J., reviewed in our Dec. 20, 2011 post] [suggesting compromise where heavily redacted billings being used: either waive the privilege or present more detail in the attorney declaration submitted in support of the fee motion].
Five Years Of Blogging . .
. . Can You Believe It?
May 11, 2008 was
our first blog. We can now announce this
is our fifth year of attempting to provide all of our readers with instructive
information on how courts address attorney’s fees requests, as well as
newsworthy related items and off topic posts once in a while. Thanks to you, our readers and audience, we have had well over 1,000,000 visits to our blog. Another accomplishment: Co-contributor Marc
has yet to commit any acts of aggression against co-contributor Mike stemming
from blogging activities . . . and vice versa. Happy Birthday to us.
About $1 Million in Fees Awarded in Bullet Train Settlement.
Although the bullet train proposal in California has generated a lot of controversy, Juliet Williams of the AP, in an April 19, 2013 article in The Orange County Register, reports that a Sacramento County Superior Court approved a settlement of a challenge from Central Valley farmers to the train. Under the settlement, the California High-Speed Rail Authority agreed to establish a $5 million fund to preserve farmland and pay nearly $1 million in legal fees to the groups that sued, mainly Madera/Merced County farm bureaus. The settlement also details how the Authority will work with landowners to acquire land along the proposed train route.
Cell Phone Embarrassed Michigan Jurist Holds Himself in Contempt/Pays Fine.
Martha Neil, in an April 15, 2013 post in the ABA Journal, give us an off topic humorous story to share with you. Chief Ionia District Judge Raymond Voet of Michigan was in the midst of a prosecutor’s closing argument in a domestic violence trial. He had a new cell phone and it went off, in violation of a noticed policy that such an occurrence will result in a $25 fine. True to form, he held himself in contempt and fined himself $25, taking a recess so he could go to the clerk’s office and pay the fine. There you go; or, as Shakespeare said in Act I, scene 7 of Macbeth, “This even-handed justice.”
In the News . . . . Average Law Grad Debt For 2011 And 30 Books Recommended By Top Lawyers, Surveyed Jurists, and Selected Law Professors/Deans
ABA Journal has some nice end-of-the-year articles that received a lot of hits or attention during 2012. Two caught our eye, so we share them with you before we say “Happy New Year” to all.
Fiscal Cliff: Law School Graduate Debt in 2011.
The average debt for law school graduates at private schools in 2011 was $125,000 compared to more than $75,000 for their counterparts at public schools, respective 17.6% and 10% increases from 2010.
Coals to Newcastle: Top 30 Books for Lawyers.
After surveying top profile lawyers, selected jurists, and law professors/deans, here is what the participants listed as being their 30 top books for lawyers (no ranking, just a list of what each participant thought was important reading for attorneys):
1. Louis Nizer, “My Life In Court.”
2. Michael Hiltzik, “Colossus: Hoover Dam and the Making of the American Century.”
3 . Adam Goodheart, “1861: The Civil War Awakening.”
4. Clarence Darrow, “The Story of My Life.”
5. Martin E.P. Seligman, “Flourish.”
6. Steve Oney, “And the Dead Shall Rise: The Murder of Mary Phagan and Lynching of Leo Frank.”
7. Katharine Graham, “Personal History.”
8. Ralph Ellison, “Invisible Man.”
9. Stacy Schiff, “Cleopatra.”
10. Antoine de Saint-Exuperay, “The Little Prince.”
11. Jeffrey B. Morris, “Leadership on the Federal Bench: The Craft and Activism of Jack Weinstein.”
12. John Wooden, “My Personal Best.”
13. Jane Jacobs, “The Death and Life of Great American Cities.”
14. Joyce Cary, “The Horse’s Mouth.”
15. Kermit Roosevelt, “In the Shadow of the Law.”
16. Scott Turow, “One L: The Turbulent True Story of a First Year at Harvard Law School.”
17. Richard Kluger, “Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality.”
18. Evan Thomas, “The Man to See: Biography of Legendary Trial Attorney Edward Bennett Williams.”
19. Ellis Case, “The End of Anger: A New Generation’s Take on Race and Rage.”
20. Robert M. Cover, “Justice Accused: Antislavery and the Judicial Process.”
21. Daniel Goleman, “Emotional Intelligence: Why It Can Matter More Than IQ.”
22. Ernest J. Gaines, “A Lesson Before Dying.”
23. Ward Farnsworth, “The Legal Analyst: A Toolkit for Thinking About the Law.”
24. Alan Paton, “Cry, the Beloved Country.”
25. John F. Kennedy, “A Nation of Immigrants.”
26. Uta Hagen, “Respect for Acting.”
27. Franz Kafka, “The Trial.”
28. Nicholas D. Kristof and Sheryl WuDunn, “Half the Sky: Turning Oppression Into Opportunities For Women Worldwide.”
29. Jim Newton, “Justice For All: Earl Warren and the Nation He Made.”
30. Stephen L. Carter, “Civility: Manners, Morals, and the Etiquette of Democracy.”
With that, we wish all of our readers and followers a Happy New Year!
California Tops the “Hellhole” List, Displacing Philadelphia.
American Tort Reform Association’s 2012-2013 “Judicial Hellhole” List and “Watch List” have come out, ranking judicial venues that are overly pro-plaintiff or even anti-business. Here are the highlights:
*California has replaced Philadelphia as the top “hellhole,” with Philadelphia taking encouraging reforms that have displaced it to the “watch list”;
*Class actions, “trolling” disability access suits, and a surge in asbestos cases were the primary factors listed for California making #1 on the “hellhole” list;
*Rounding out the “hellhole” top five are: #2 -- West Virginia; #3 -- Madison County, Ill.; #4 -- New York City and Albany, N.Y.; and #5 -- Baltimore, Md.;
*The “watch list” included these venues: Philadelphia; South Florida (both of which moved off the “hellhole” list); Cook County, Ill.; New Jersey; Nevada; Louisiana;
*ATRA also commended the California Supreme Court for its decision in O’Neil v. Crane Co., 53 Cal.4th 355 (2012), where our state high court ruled that companies generally are not liable for component products that are attached to or installed on their products after sale.
Disclaimer: We note that the ATRA entry in Wikipedia states that it has been nominated to be checked for neutrality. ATRA is an advocacy group that, according to the Wikipedia entry, is supported by "more than 300 businesses, corporations, municipalities, associations, and professional firms." ."Tort reform" is a politically contentious issue and a loaded term subject to different points of view.
Off-Topic . . . . A Little Bit of Humor on Jury Voir Dire
Okay, we digress a bit, but we share this gem from the recent American Bar Association Journal, a classic for any litigator.
Posted by ARog: "A judge in our court likes to tell about voir dire in a criminal trial where the charge was conspiracy to distribute cocaine base. The judge's questioning went like this:
Judge: Does anybody on the panel know the defendant or any of the lawyers?
Prospective juror: I do.
Judge: Which person do you know?
Prospective Juror: The defendant.
Judge: How do you know the defendant?
Prospective juror: I bought crack from him.
The judge excused the entire panel."
The Age of Drugs. Illustration shows the interior of a drugstore with an elderly man, the pharmacist, dispensing a "Bracer" to a crowd of eager consumers, while a young girl secures a bottle of "Soothing Syrup." On the counter are bottles and packets of "Arsenic, Strychnine, Antipyrin, Nerve Stimulant, Opium, Cocaine" and "The Needle." Signs on the wall state "The Killem' Quick Pharmacy," "Open all night," and "Prescriptions carefully compounded." The saloon keeper leans against a column and laments that he cannot "begin to compete with" the drug trade. Louis Dalrymple, artist. Library of Congress.
The purpose of this blawg is to provide a current and ongoing discussion of California case law and developments concerning mediation and arbitration -- the two most common varieties of “alternative dispute resolution” (ADR). This new blawg is a natural offshoot of Marc’s work on CalAttorneysFees, to which he is a co-contributor, along with his long-time colleague Mike Hensley. As the Mission Statement of CalAttorneysFees notes, attorney’s fees are often (too often) the “tail that wags the dog” of litigation. ADR is an alternative that at its best is more efficient and economical, and less painful than a lawsuit. Marc, who will also be applying his experience as a civil litigator to providing mediation services, invites your comments and input. You are invited to visit the new blawg.
Well, the American Tort Reform Foundation has come out with its 2011 list of top “hellholes” nationally for “places where judges systematically apply laws and court procedures in an unfair and unbalanced manner.”
California ranked second on the list, the same ranking as it had in 2010. The top ones were: Philadelphia; California; West Virginia; South Florida; Madison and St. Clair counties, Illinois; New York City and Albany, N.Y.; Clark County, Nevada; and McLean County, Illinois.
California made the list for ADA “shakedown” suits, excessive punitive damage awards, weak class action suits, judicial ignoring of voter-approved laws, and lack of State Bar of California discipline for attorneys who file fraudulent suits. However, the report did praise California in some areas, especially the Supreme Court’s decision in Howell v. Hamilton Meats & Provisions, Inc., 52 Cal.4th 541 (2011), which limited personal injury claimants to recovering special medical damages for amounts actually paid by insurers/Medical/Medicaid rather than the larger amounts billed (but written off) by health care providers.
We thank Jan Norman for her summary in a December 29, 2011 article in The Orange County Register. The full report is free and can be obtained at atra.org.
Just a quick post to remind ourselves that this is our third “birthday” in doing this blawg. We can hardly believe it; how time flies since our inaugural post on May 11, 2008. We hope it has been useful to you readers out there, and we thank you all for some very excellent interactive feedback over the last three years.
Laddie Boy with his birthday cake on the White House grounds. 1922.
The Conference is June 16, 2011, Noon to 5 p.m., at Southwestern School of Law
The National Association of Legal Fee Analysis (NALFA) holds its annual conference this year at Southwestern School of Law in Los Angeles. Blawg co-contributor and co-creator Mike Hensley will be one of the speakers, participating in a panel on attorney fees in prevailing party litigation with the Hon. Jay C. Gandhi, and attorney Joseph P. Wohrle.
For a complete conference agenda, for registration, or both, click here.
Stay Tuned, Because Study of Israeli Judges Suggests Some Truth to This.
Okay, time for some “off topic” fun, under the heading, "justice, justice, shall you pursue." (Deut. 16:18-21:9).
We litigators know that there is a maxim that justice may well depend on “what the judge ate for breakfast.” Well, that idea was tested when researchers reported results of studying 1,112 rulings by Israeli judges in criminal parole board proceedings. The results were reported in today’s edition of Proceedings of the National Academy of Sciences.
What were the results?
At the beginning of a court session, about 65% of the rulings tended to favor the prisoner, but the chance of a favorable ruling declined to near zero by the end of the session. After a break for a meal, however, favorable rulings for prisoners jumped back up to about 65% but then began declining again. “We find that the likelihood of a favorable ruling is greater at the very beginning of the work day or after a food break than later in the sequence of cases,” the researchers reported.
Professors Theodore Eisenberg (Cornell) and Geoffrey P. Miller (NYU) conclude that neither the American Rule nor the English Rule dominates the contracting practices of sophisticated firms
This empirical study of attorney fee clauses in publicly-held companies’ contracts, guaranteed to enchant law and economics wonks, examines a data set of 2,350 contracts contained as exhibits in Form 8-K filings – contracts likely to be negotiated by sophisticated parties. The authors’ study “is premised on the idea that at the time of entering into a contract, sophisticated parties have incentives to adopt terms that maximize joint value.” Do sophisticated parties, with an opportunity to consider and weigh the advantages and disadvantages of particular contractual fee provisions prefer the American Rule (each party pays its own fees in litigation) or the English Rule (loser pays)?
The surprising conclusion is that “neither the American Rule nor the English rules dominates the contracting practices of sophisticated firms.” Patterns did emerge from the study – some of which were predicted, others of which were counter-intuitive. But there is “no single overarching pattern.”
For example, the authors hypothesized that sophisticated foreign parties would tend to opt out of the American Rule, because the English Rule is more common outside the United States. But the opposite turned out to be the case, and the authors do not have a clear explanation for that result.
The authors predicted that highly standardized contracts would tend to opt for the American Rule, because it is the norm in the United States, but their data did not confirm that hypothesis.
As predicted, contracts in which the parties have a long-term relationship tend to prefer the American Rule – explained by the desire of parties who trust one another to avoid an outcome that underscores that one of the parties was wrong from a legal point of view.
The authors also predicted that loser-pay rules would be more frequently observed where there is a jury waiver – and this was confirmed. Loser-pay rules tend to increase risk, and litigants may perceive that a jury waiver decreases risk.
The authors also found that particular types of contracts favored one rule over the other – perhaps simply the result of the drafting histories of specific types of contracts.
As interesting as the authors’ own empirical study is their review of the theoretical and empirical literature. One conclusion: “Overall, the theoretical literature is indeterminate as to the practical effects and social utility of attorney fees regimes.” The authors summarize the reasons for this conclusion by quoting the work of another scholar (Avery Katz ):
“The reason for this agnostic conclusion is straightforward. Legal costs influence all aspects of the litigation process, from the decision to file suit to the choice between settlement and trial to the question whether to take precautions against a dispute in the first place . . . . The combination of all these external effects is too complicated to be remedied by a simple rule of ‘loser pays.’ Instead, indemnity of legal fees remedies some externalities while failing to address and even exacerbating others.”
The authors’ summary of empirical studies is about as inconclusive as their summary of theoretical studies:
“Overall, perhaps the most that can be said is that academic research have [sic] generated few clear-cut results other than the (obvious) conclusion that the English Rule is relatively more risky than the American Rule, and the somewhat less obvious) proposition that the English Rule will stimulate greater expenditures on litigation.”
This is a sobering article. Those who long, like Harry Truman did, for advice from “one-handed economists”, will be disappointed. Though exuberant proposals to “reform” our legal system by imposing an English Rule circulate all the time, caution is desirable in this area, if policy-making is to be based on solid evidence. The real-life behavior of sophisticated contracting parties suggests that imposing a “one size fits all” solution to the issue of allocating litigation fees is not a solution that sophisticated contracting parties themselves would appreciate, and furthermore, that the benefits and costs of the English and American Rules are far from obvious given the complicated economic externalities involved. To sum up: on the one hand, on the other hand . . . .
There are some civil litigation updates that have changed or added features of procedures used or which will be used by many California litigators on a frequent basis, depending on practice areas. Here are our highlights:
1. Striking of Judges. Code Civ. Proc., § 170.6. Time period for judge disqualification upped from 10 to 15 days, with the moving party required to notify all other parties of the “striking” within five days after filing the “strike.”
2. Residential Foreclosures. Code Civ. Proc., § 1161a. Residential foreclosure nature of action must be included on the complaint’s face page.
3. Commercial Unlawful Detainer Actions. Revises the process for serving tenants with an unlawful detainer notice, providing three methods:
(a) personal delivery to a tenant; (b) if the tenant is absent from the rental property, sub-serve a copy on someone of suitable age/discretion at the property and then mail a copy to the tenant at the rental property address; and (c) if no sub-service can be made after reasonable diligence, affix a copy of the notice in a conspicuous place on the prperty and then mail a copy to the tenant at the rental property address.
4. Writs Issuance. Need to disclose near the case number box the type of legal entity with respect to the judgment debtor if not a natural person and include a statement indicating whether the case is limited or unlimited in nature. Sheriff likely will kick if this information is not there.
5. Expedited Jury Trials. Discussed in our January 8, 2011 post. Co-contributor Mike can vouch that Orange County judges are pushing this new procedure. At one law and motion hearing, an appearing attorney said he used this procedure in Riverside court, submitting medical reports to the jury and completing trial in a day. The attorney stated that both sides were pleased with how the trial went.
6. Electronic Service of Process. Code Civ. Proc., § 1010.6. This section authorizes service by either electronic transmission or electronic notification if a party has authorized service in one of these ways. There is a two court day extension for such service, much like that for express mail, overnight delivery, or fax transmission.
7. New Judicial Council Forms. Among others, there is a Proposed Order cover sheet, Exppedited Jury Trial Information Sheet, and Notice of Court Hearing form.
Bris Attendance Is Basis For Continuance, But Ruling Goes Further.
Let us wish all of our readers a happy and joyous Thanksgiving as well as blessings on our men and women in the service (both in the U.S. and overseas).
Now, for an interesting request made to and subsequent order from U.S. District Judge Kimba M. Wood of the Southern District of New York.
In United States v. Lacey, an attorney representing one of the defendants made a letter application to Judge Woods requesting a brief one-day recess in the middle of trial based on grounds the attorney dubbed as a “writ of possible simcha.” (Simcha is Yiddish for “celebration of a happy event.”) The grounds for the simcha writ request were that attorney’s daughter and son-in-law were expecting a baby soon and, if it happened to be a boy, he would like to be excused to attend the bris (the ritualistic circumcision or Covenant of Abraham--joyous to everyone but the baby, apparently) because this is a hoo hah (big fuss) event. The attorney promised to bring pictures if the one day recess was granted.
So what was the ruling on the “writ of simcha”? We quote Judge Woods’ written, equitably-based ruling in full: “Mr. Epstein will be permitted to attend the bris, in the joyous event that a son is born. But the Court would like to balance the scales. If a daughter is born, there will be a public celebration in Court, with readings from poetry celebrating girls and women.”