CALIFORNIA ATTORNEY'S FEES

Off Topics: Co-Contributor Marc's Article On Mediator Settlement Proposals Is Now Published In Advocate

The Article Is Entitled Mediator Settlement Proposals: A Perspective.

        Co-contributor Marc has written an article on an "off topic." The article, published in the July 2023 issue of Advocate, can also be read here: Download Alexander-July23-article

        Marc serves as a mediator and is affiliated with ARC/Alternative Resolution Centers. He can be contacted at [email protected].

Off Topics: Do Lawyers Like Legalese And Why Does It Persist?

Conclusions in Recent Report Summarized By The Economist Suggest Lawyers Prefer Simplified Language and The Report Then Tries To Answer Why It Persists.

            The June 3, 2023 issue of The Economist reports on a study published in Proceedings of the National Academy of Sciences (Martinez and MIT/University of Edinburgh colleagues) about why lawyers use legalese and why it persists.  The conclusions might surprise you.

            The general conclusion was that lawyers preferred simplified language over legalese.  So, the authors of the study examined hypotheses as to why it persists.

            The “curse of knowledge” hypothesis is the idea that learned people do not know how to write for the less informed.  But the researchers found that lawyers, like laypeople, struggled with legalese because it is harder to understand.

            The more cynical “it’s just business” hypothesis is the theory that lawyers are intentionally opaque to get clients paying more for their supposed expertise.  But that hypothesis did not fit the data because lawyers believed their clients would be more likely to sign simplified contracts.

            The “in-group signaling” hypothesis is that legalese is a signal belonging to the legal fraternity such that it is aimed to impress fellow lawyers.  But lawyers in the test group debunked this idea because they indicated that they would be more likely to hire the writers of simplified contracts.

            The most common defense for legalese, the need for precision, did not hold up because the surveyed lawyers reading simplified contracts rated them just as enforceable as complex ones.

            That left researchers with a simple conclusion:  the “copy-and-paste hypothesis,” that is that lawyers imitate what previous lawyers have done because the legalese can be incorporated routinely into contracts drafted for clients.

OFF TOPIC: Justice Fybel of the 4/3 DCA Set To Retire Effective March 31, 2022

He Was An Appellate Jurist For Over 20 Years, Also Contributing To Broader Legal And Community Issues.

            Our local Santa Ana appellate court will have a different complexion in the near future. Earlier, Justices Aronson and Ikola retired, becoming retired neutrals at JAMS.  Now, we can report that Justice Richard D. Fybel has announced his retirement from the 4/3 DCA effective March 31, 2022.

            Justice Fybel has authored 2,000 opinions (200 of which are published) during his 20-year tenure on the appellate bench.  Co-contributors Mike and Marc have argued in front of him on several matters, reinforcing publicized perceptions about his careful legal scholarship and efforts to be fair to the parties appearing before him on any given panel.  He also has co-authored a judicial ethic treatise “California Judicial Conduct Handbook” as well as lectured/written on the legal system during the Holocaust and Nuremberg Trials.  Justice Fybel further served as president of Irvine’s University Synagogue. 

            We wish him well in his retirement.

Off Topic: 4/3 DCA Justice David A. Thompson Set To Retire From Appellate Bench On October 15, 2021

He Served As Both An Orange County Superior Court Judge And Appellate Justice.

            We recently noticed that Justice David A. Thompson of the 4/3 DCA has announced he will retire on October 15, 2021 from the appellate bench, planning to return to the private sector after 24 years on the bench.  Co-contributor Mike appeared before him while he sat on the Orange County Superior Court and the 4/3 DCA.  We wish him well in his future endeavors. 

Off Topics: Tabs3 Has Some Nice Tips For Increasing Attorney’s Fee Collections

Tips Are In Recent On-Line ABA Journal Article.

            Tabs3, in a recent ABA Journal on-line article, provided some good tips for attorneys and firms wishing to maximize collection of fees:

• • Track your time monthly, so you can get a grip on how long billing tasks take on behalf of the client.
  • Pre-bill as if it’s you—ask yourself “would I pay this bill?” and make downward adjustments.
  • Plan billing into your schedule—pre-bill review should be a priority scheduled event.
  • Stay on top of collections. In this area, a Commercial Collection Agency Association survey found that 27% accounts which are 3 months past, 44% of accounts which are 6 months late, and about 75% of accounts 12 months overdue will never be collected!
  • Keep good clients—make them a priority and be responsive to them, purging bad clients unless they meet their payment obligations.
  • Make it easy for clients to pay—institute credit card and even legal-specific merchant payment mechanisms.

Off Topic: Justices Aronson and Ikola Set To Retire In Mid-2021

They Will Be Missed On Our 4/3 DCA.

            At an Orange County Bar Association appellate section meeting on March 5, 2021, Presiding Justice Kathleen O’Leary presented a ZOOM presentation on the state of the 4/3 DCA.  Among other things (including that appeals were down during the pandemic but that operations ran smoothly due to terrific staff coordination), she announced that two of her colleagues, Justice Richard Aronson and Raymond Ikola, had indicated that they planned to retire around July of this year.  Co-contributor Mike (several times with the briefing help of co-contributor Marc) has argued before these two justice quite a number of times, and we as well as our co-blogger Shanna Strader wish them happiness—thanking them for their service on the appellate bench (after prior tenures on the Orange County Superior Court).

Co-Contributor Marc Has Article In December 24, 2020 Daily Journal About Qui Tam Actions And Arbitration

Qui Tam Actions May Avoid Arbitration.

        Marc's article in the December 24, 2020 Daily Journal is entitled, "Qui tam actions can avoid arbitration in California." The article is prompted by an opinion authored by Justice Arthur Gilbert in State of California ex rel. Aetna Health of California, Inc. et al., B299025 (2nd Dist. Div. 6  12/21/20). The opinion held that a qui tam action involving the California Insurance Fraud Protection Act to combat insurance fraud, avoids a binding arbitration agreement. The reasoning is in line with a California Supreme Court opinion addressing arbitration and qui tam actions in the context of the California Private Attorney General Act of 2004, Iskanian v. CLS Transportation Los Angeles, LLC.

Off Topics: Dogs Are Given Their Deserved Respect In Recent 4/3 DCA Published Opinion

We Couldn’t Say It Better.

            Okay, if you follow our Mission Statement on this blog, we do quote from a decision by Retired Justice Wallin as far as the ultimate result in attorney’s fees battles.  Here it is:  "All too often attorney fees become the tail that wags the dog in litigation."  Deane Gardenhome Assn. v. Dentkas, 13 Cal.App.4th 1394, 1399 (1993).

            Although not directed to an attorney’s fees issue, we give credit to Justice Ikola of our local appellate court for recognizing the worth of dogs in Levy v. Only Cremations For Pets, Inc., Case No. G057888 (4^th Dist., Div. 3 Nov. 6, 2020) (published):  “As our high court long ago recognized regarding dogs, ‘there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt.’ (Johnson v. McConnell (1889) 80 Cal. 545, 549.) ‘We have come a long way from the old common law concept of a dog not even being considered property. Not only is he more than property today, he is the subject of sonnets, the object of song, the symbol of loyalty. Indeed, he is man’s best friend.’  (Katsaris v. Cook (1986) 180 Cal.App.3d 256, 270 (conc. & dis. opn. of Sabraw, J.).)”  Amen, with no undue respect for all pets—which are all special in nature.

Reviews: Co-Contributor Marc Publishes Article On Nuts And Bolts Of Videoconference Dispute Resolution

The Article About Videoconference Dispute Resolution Appears In Current Issue Of California Litigation, Vol. 33, No. 2 (2020).

        These days, Marc serves as a mediator on the panels of the USDC Central District and the Orange County Superior Court. Marc's article, "Nuts and Bolts of Videoconference Dispute Resolution in the Time of COVID-19", addresses the mechanics, best practices, and  pros and cons of videoconferencing in an ADR practice. With the permission of the California Lawyers Association and its journal California Litigation, the article is republished here and can be read by clicking on the title of the hyperlinked article. Marc is solely responsible for the contents and opinions in the article.

Books: Co-Contributor Marc Reviews Three Books Relating To Government Regulation And Citizen Safety

The Book Reviews Are In The Current Issue Of California Litigation.

            Co-contributor Marc reviews three books in the current issue of California Litigation, Vol. 32, No. 2, 2019. With the permission of California Litigation, we make the article available if you click here. Any opinions expressed are those of the author alone, and for which the author alone, and not the California Lawyers Association, is responsible. 

            From the article:

    "Our government has been described as an insurance conglomerate and a large army. A core function of government is identifying and managing risk to protect the public from harm. The thread tying together the three books under review is government’s ability to manage risk. Dark Tide, about a horrific industrial accident, has been reissued in time to mark the 100th anniversary of the great molasses flood of 1919 that killed 21 people and devastated the North End of Boston. The Poison Squad, about the efforts to protect the public from dangerous and adulterated food, focuses on a heroic public servant. And, The Fifth Risk is about contemporary neglect, incompetence, and short-sightedness in federal agencies."

Ethics, Off Topic: Default Vacated By 4/3 DCA Panel In Stark Reminder That Law Is A Profession, Not A Business Only—Civility And Professional Courtesies Are Still Virtues

A Stirring Ethical Opinion, Which Every Attorney Should Read.

            We acknowledge that this post on Lasalle v. Vogel, Case No. G055381 (4^th Dist., Div. 3 June 11, 2019) (published) is not related to attorney’s fees, but it is worthy of a post and a reminder to all California attorneys that we are both officers of the court and have an ethical responsibility to act with civility.

            The facts are not complicated.  A quick default was taken, and a set-aside motion was denied.  The appellate court reversed the result based on the particular circumstances. 

            But that was not the end of the matter.  The 4/3 DCA, in an eloquent opinion, stressed that the law is still a profession, not a business only.  Scorched earth, feet-to-the-fire attitudes should not be condoned (especially in litigation).  Rather, attorneys need to provide advance warnings of draconian default maneuvers and follow the simple mandate of CCP §583/130, where parties are to cooperate with each other in bringing an action to resolution in reasonably diligent fashion. 

            We thank Acting Presiding Justice Bedsworth for this very salient opinion, authored on behalf of the 4/3 DCA panel.

In The News: Retired Judge Kozinski Has Intriguing Attorney's Fees Proposal For Government Attorneys Who Prosecute Pointless Lawsuits

Lack Of Exposure To Consequences Presents A Moral Hazard.

    The Hon. Alex Kozinski, retired from the Ninth Circuit, and now an expert on moral hazard, has written an intriguing article in today's Friday, January 25, 2019 Wall Street Journal. The article is entitled, "How a Pointless Lawsuit Took Off."

    The lawsuit involved Rahinah Ibrahim, a Malaysian national and Stanford doctoral candidate, who discovered that she was on the government's no-fly list, barred from U.S. airlines and airspace. It was all a horrible mistake, an error resulting from a government agent who misread a form. But the government fought Ms. Ibrahim's efforts to be removed from the no-fly list for 14 years. According to Kozinski, "government officials knew about the mistake almost from the day of her arrest." 

    Aside from the cost of time, effort, and emotional resources, the case consumed $3.6 million in attorney's fees. Kozinski argues government lawyers face no reality check: "Their salaries get paid regardless of outcome, and the costs of litigation are picked up by the taxpayers. . . Litigating for the government thus poses a moral hazard for lawyers: A victory, no matter how Pyrrhic, delayed or pointless, enhances their careers, whereas a loss -- even a finding of bad faith -- carries little risk."

    Kozinski's modest proposal is that the Equal Access to Justice Act, under which Ms. Ibrahim's laywers will get paid, absent a showing that the government's position "was substantially justified," be amended to stick government attorneys with personal responsibility for some share -- say 1% -- of the attorney's fees, upon a finding of bad faith.

    If Kozinski's proposal is enacted into law, we see a new cottage industry springing up. Courts will be forced to decide whether government attorneys acted in good faith as zealous advocates, or whether they were naughty and acted in bad faith. Every contentious case that government attorneys lose will potentially become an opportunity to tap the attorneys for some amount of fees -- one more reason not to work in the public sector. And we will have to create a new sidebar category on this blog for government attorneys.

    

Off Topic: Happy Tenth Birthday To This Blog!

We Can’t Believe The Time Has Flown By.

            As we age, we have all heard the adage that time seems to go even faster the older we get.

            Co-contributors Mike and Marc agree, at least with respect to doing ten years of blogging at this site since our first post on May 11, 2008. We hope you readers have found our posts useful and sometimes even humorous during the time you have been following us, for which we thank you all.

Off Topic: Our Blog Just Surpassed 2 Million Lifetime Page Views

Wow – Thanks To Your Viewers.

            Marc and Mike are close to our tenth anniversary on this blog.  Hopefully, and very respectfully, it has provided some use to our readers – we will say nothing more.

            However, we have just passed 2 million lifetime page views. 

            We are humbled and hopefully can only continue on our Mission Statement to report on California fee issues (a little more).  Thanks for your readership over the years. 

Happy New Year 2018 To All Our Readers

 

 

A fireworks show caps off the "Warmth of Winter" exhibition at the annual Winter Carnival in Steamboat Springs, Colorado.  Carol M Highsmith, photographer.  2016.  Library of Congress.

Off Topic: Co-Contributor Marc Alexander Has Reviewed Ari Berman's "Give Us The Ballot" For California Litigation, The Journal Of The California State Bar

A Review of Ari Berman's Book, Give Us The Ballot:  The Modern Struggle For Voting Rights In America.

        Co-contributor Marc has written a review of Ari Berman's book, "Give Us The Ballot."  The review, which appears in the latest  issue of California Litigation, the journal of the California State Bar, is republished here, with the permission of the State Bar. 

    HAT TIP to Professor Justin Levitt at Loyola Law School, Los Angeles, for providing us with a link to his excellent article, The Party Line: Gerrymandering at the Supreme Court, also appearing in California Litigation, Vol. 3, No. 3 (2017)

Off Topic: California Comes In #2 On American Tort Reform Foundation’s 2017 List of “Judicial Hellholes”

Amount Of Litigation And Lots Of New Laws Cited As Factors, And Certain Types Of Litigation Identified As Behind The Rating.

Dante's 6th Circle of Hell.  Wikimedia Commons. Gustave Dore.

            Confirming its relative rankings in the last few years, California clocked in as #2 on the American Tort Reform Foundation’s list of 2017 “Judicial Hellholes.” 

            Florida came in at #1, California at #2, City of St. Louis, MO Circuit Court at #3, New York City’s Asbestos Litigation Court at #4, Philadelphia Court of Common Pleas (especially its Complex Litigation Center) at #5, New Jersey at #6, Madison and Cook Counties, Ill. at #7, and Louisiana at #8.

            The 2017 Report especially cited these areas as a basis for the ranking:  PAGA (intended to protected employees); Proposition 65 (intended to protect public health); false advertising (food labels) (intended to protect consumers), noting that the N.D. California federal court is sometimes dubbed the “Food Court;” innovator product liability theory; CEQA; public nuisance laws; asbestos/talc; some abusive personal injury suits in the aftermath of California fires; and ADA.

            COMMENT:  ATRA looks askance at legislation and regulations that add to the cost of doing business, e.g., laws and regulations designed to protect employees, consumers, and the environment.  Such protections are enforced through  private lawsuits, because states lack the resources to fully enforce protections of health, welfare, safety, and the environment.  Hence, ATRA and the U.S. Chamber of Commerce, on the one hand, and trial attorneys on the other, have been historical adversaries.  

Off Topic: ABA Journal Has Interesting Article About The Rating Of 113 Different Global Nations In “Rule Of Law Rankings”

 U.S. Has A Global Ranking Of 18, Behind The Czech Republic And Ahead Of The Republic Of Korea.

            In the November 2017 issue of the ABA Journal, there is an article summarizing the results of the October 2016 edition of the Rule of Law Index, which is collected by the World Justice Project (an independent nonprofit organization with offices in D.C. and Seattle).  It ranks 113 different global nations on a Rule of Law Index.   The index’s analytical framework is built on an inverted pyramid of elements, starting with the four universal principles of the rule of law:  accountability by government and private entities; laws being clear, publicized, stable, and just, applied evenly, and protecting fundamental rights; the process by which laws are enacted, administered, and enforced are accessible, fair, and efficient; and justice is delivered in a timely fashion by competent, ethical and independent representatives and others who are supported by adequate resources and reflect the makeup of the communities they serve.  There are other subfactors flowing from these universal principles which were utilized, with the data coming from surveys of 1,000 residents in each country’s three largest cities and questionnaires completed by in-country practitioners/academics with expertise in civil/commercial law, criminal justice, labor law, and public health. 

            The 2016 results show that Denmark, followed by Norway, Finland, Sweden, and the Netherlands, are at the top of the global rankings.  The United States came in at No. 18, just behind the Czech Republic and just ahead of the Republic of Korea.  At the bottom were countries such as Egypt, Afghanistan, Cambodia, and Venezuela. 

            So, why 18^th for the U.S.?  According to the article, the main problem was access to and affordability of civil justice services, which brought a comparatively low ranking for the U.S.  However, the U.S. did well in areas such as constraints on government power, regulatory enforcement, open government, and absence of corruption. 

            COMMENT:  The Rule of Law survey should also be considered in light of the research conducted by Yascha Mounk, a Harvard lecturer, and Roberto Stefan Foa, a political scientist at the University of Melbourne.  Their conclusions are summarized in a December 8, 2016 article available on line, and entitled, "Yes, people really are turning away from democracy."  Their conclusions about trends:  (1) a greater share of young people is neutral about living in a democracy; (2) a greater share of young people living in longstanding democracies claim that democracy is a bad or very bad way to run their country; (3) young Americans are more open to having a "strong leader"; (3) radicalism has risen among respondents aged 14 to 35 during the period 2005-2014, as compared to the period 1990-1995; (4) a rising share of respondents, including in the United States, favor a strong leader over elections.  These trends fall under the rubric of "democratic backsliding."

            SUGGESTED FOR FURTHER READING:  Tom Bingham, The Rule of Law (2011).  

Off Topic (But Fun): August 2017 Lists Movie/T.V. Favorite Judges

Some Sitting Jurists And Law Professor Reveal Their Favorites

 

            The August 2017 edition of the ABA Journal has an article, “Honoring Our Favorite Your Honors,” where several sitting jurists and one law professor list their favorite judges from the movies or television.  Here they are:

• Circuit Judge Alex Kozinski (Ninth Circuit Court of Appeals):

            Judge Chamberlain Haller – portrayed by Fred Gwynne – My Cousin Vinny

 

• Circuit Judge Bernice B. Donald (Sixth Circuit Court of Appeals):

            Judge Philip Banks (“Uncle Phil”) – portrayed by James Avery – The Fresh

            Prince of Bel-Air and

            Judge Elizabeth Donnelly – portrayed by Judith Light – Law & Order:  Special

            Victims Unit

 

• Judge Arthur L. Hunter, Jr., Orleans Parish Criminal District Court (New Orleans):

            Judge H. Lee Sarokin – portrayed by Rod Steiger – The Hurricane (movie based

            on the story of Rubin “Hurricane” Carter)

• Chief Judge Laurie A. White, Orleans Parish Criminal District Court (New Orleans):

            Judge Francis Rayford – portrayed by Jack Warden – And Justice For All and

            Judge Henry T. Fleming – portrayed by John Forsythe – And Justice For All

 

• Christine A. Corcos, Associate Professor of Law, Louisiana State University:

            Judge Dan Haywood – portrayed by Spencer Tracy – Judgment at Nuremberg

            and Judge Ernst Janning – portrayed by Burt Lancaster – Judgment at Nuremberg

            as well as Judge Henry X. Harper – portrayed by Gene Lockhart – Miracle on

            34^th Street.

 

COMMENT:  To this list, we would add:

•        Judge Weaver, portrayed by attorney Joseph N. Welch in Anatomy of a Murder, famous for his role in the Army-McCarthy hearings ("At long last, have you left no sense of decency?").     

                    Joseph N. Welch

•     Judge Roger ("the Mad Bull") Bullingham, portrayed by Bill Fraser in Rumpole of the Old Bailey.

Off Topics: Bloggers Mike And Marc Are Interviewed About Attorney's Fees For Podcast Hosted By The National Association Of Legal Fees Analysis

Just In Case You've Ever Wondered What Your Bloggers Sound Like When They Push Aside The Keyboard And Pick Up A Microphone.

        Terry Jesse, the Executive Director of the National Association of Legal Fee Analysis (NALFA), headquartered in Chicago, interviewed us, your faithful bloggers, on (what else) the subject of attorney's fees.  Click here for a link to the podcast.

        HAT TIP to Terry!

        Note:  We had trouble accessing the podcast with Google Chrome, but not with Firefox. 

Happy Ninth Birthday, California Attorney's Fees

The Birthday Cake. Harry Whittier Frees, photographer.  1914.  Library of Congress.

         We -- Mike Hensley and Marc Alexander -- began publishing California Attorney's Fees on May 9, 2009.   As we said in our Mission Statement:

Our mission is simple: provide a resource tool to practitioners, jurists, and the public about the law governing attorneys’ fees/costs awards, but focused on the law and pragmatic experiences in California state or California federal judicial forums. Aside from examining applicable statutory and decisional law in the area, we will also explore ethical considerations that apply in requesting an award of fees and costs.

        We were inspired by an insight in an opinion:  "All too often attorney fees become the tail that wags the dog in litigation."  Deane Gardenhome Assn. v. Dentkas, 13 Cal.App.4th 1394, 1399 (1993).  Many of the more than four thousand posts in our blawg support the wisdom of that insight.

        We have received countless phone calls, emails, and comments about the posts, and we greatly appreciate our lively, interested, and involved readers.  To date, our blog has received over 1.8 million pageviews.  

Happy New Year To All Our Readers !

Golden Gate Bridge, 75th anniversary fireworks.  Carol M. Highsmith, photographer.  2012.  Library of Congress.

Arbitration: Co-Contributor Marc’s Article On “The Politics Of Arbitration” Appears In The Current Volume Of California Litigation, The Journal Of The State Bar

One More “Hot Button Issue” For The Courts . . .   

     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.

Happy Birthday To Us …. Eight Years – First Started On May 11, 2008

 

 

Happy Mother’s Day To You Moms Out There Also!

 

            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.

 

Happy New Year, Dear Readers

The hook for 1912.  Thomas E. Powers, cartoonist.  Library of Congress.

Off Topics . . . . Historical Facts About The Terms “Witch Hunt” Or “Witch Trial”

 

Salem Village, Massachusetts Was The Instigating Place.

     The October 2015 edition of the ABA Journal has an interesting article about 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.

Off Topics: Seventh Happy Birthday To Us!

 

Hard To Believe.

     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.

Off Topic: The Perils Of Blogging

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.

Off Topic: Nonsuing, Joint Client Cannot Invoke Attorney-Client Privilege To Shield Communications In Suing, Joint Client Suit Against Former Attorney Representing Joint Clients

 

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.)

     Presiding Justice Rothschild authored the opinion on behalf of a 3-0 panel.

Happy New Year To All Our Readers !

Mummers Day Parade on New Year’s day, Philadelphia, Pennsylvania.  Carol M. Highsmith, photographer.  Library of Congress.

Happy Thanksgiving To All Our Readers

Off Topic: 2013 Judicial Council Court Statistics For Fiscal Year 2012 Show Courts Are Doing A Good Job Of Managing Cases/Causes

 

Good Record Despite Financial Cutbacks.

     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.

Off Topic . . . . In Memoriam To Ray Alvarado

 

     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.

Department of Corrections

Florence McAuliffe Was A Man.

     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.

Happy Sixth Birthday To Us And Thanks To Readers Out There.

     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

Off Topic: Recent 2/6 DCA Opinion Has Nice Summary Of Appellate Review Standards

 

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.4^th [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.4^th 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.

Off Topic: Sonoma Risk Insurance Agency Expands Its Attorneys’ Fees Risk Insurance Suite Of Products

 

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.

Off Topic: Fiscal Year 2012 California Appellate Statistics Are In

 

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.

Off Topic: ABA Chronicles 10 Pivotal Trials

 

From Adam/Eve To Modern Times ....

In the November 2013 edition of the ABA Journal, there is a list of 10 pivotal past trials, which we repeat by category.

*Guilt and Ignorance -- God punishes Adam and Eve, and the Serpent. Garden of Eden, after the 7th day.

*Treason -- English Parliament puts King Charles I on trial. London, 1649.

*Illegal Voting -- Susan B. Anthony is convicted for casting a ballot. Canandaigua, N.Y., 1873.

*Misconduct -- Clarence Darrow is tried on charges of bribing jurors. Los Angeles, CA, 1912.

*Race and Immigration -- A court decides who is white under the law (Dow v. United States). Charleston, S.C., 1915.

*War Crimes -- An Allied tribunal brings Nazi leaders to account. Nuremberg, Germany, 1945.

*Desegregation -- The U.S. Supreme Court rejects the separate but equal doctrine (Brown v. Board of Education). Washington, D.C., 1954.

*Crimes Against Humanity -- Adolf Eichmann is convicted for his role in the “Final Solution.” Jerusalem, Israel, 1961.

*Sabotage -- Nelson Mandela is spared from a death sentence. Pretoria, South Africa, 1964.

*War Crimes -- Serb leader Slobodan Milosevic is tried by an international tribunal. The Hague, Netherlands, 2002.

Off Topic . . . . Recent Survey of Law Firm Economics Show Per Lawyer Revenue Rose From Third Quarter Last Year For All Attorneys, Except For Small Decline For 1-9 Attorney Sized Offices

 

     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.