CALIFORNIA ATTORNEY'S FEES

Off Topic: American Tort Reform Association Comes Out With Its 2012-2013 “Judicial Hellhole” Report

 

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.

Happy Holidays !

And Best Wishes To Our Readers For 2013

 

 

Ernst Haeckel.  Acanthophracta.  Kunstformen der Natur (1904).

Happy Birthday to Us

 

4 Years, Wow!

     To all of our readers, thanks for the support, kind words, feedback, and the like. This blog is four years old, dating back to May 11, 2008. Wow! Happy 4th Birthday.

Will Clayton, photographer.  flickr creative commons license.

Off Topic–Legal Humor

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.

Co-Contributor Marc Launches Blawg About California Mediation and Arbitration

ADR:  More Dog, Less Tail?

     Co-contributor Marc has launched a new blawg:  California Mediation and Arbitration at http://www.calmediation.org. 

     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.

MLK Day

In Honor of Dr. Martin Luther King, Jr.

 

 

Dr. Martin Luther King, Jr. January 15, 1929 – April 4, 1968.

Happy New Year from Marc and Mike !

Off Topic: California Ranks Second In Top “Hellholes” List By American Tort Reform Foundation

 

     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.

Happy Holidays from Mike and Marc

Ernst Haeckel, Kunstformen der Natur (1904), plate 17.

Happy Third Birthday To Our Blog--We Can’t Believe It.

 

     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.

Co-Contributor Mike Hensley to Speak at 2011 NALFA Attorney Fee Conference

 

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.

Off Topic: Does “What The Judge Ate For Breakfast” Influence His Decisions?

 

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.

Off Topics: The English vs. the American Rule on Attorneys Fees: An Empirical Study of Attorney Fee Clauses in Publicly-Held Companies’ Contracts (2010)

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 [1990]):

“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.”

     The article is available online at http://lsr.nellco.org/nyu_lewp/241

     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 . . . .  

Off Topic/Legislation: Some 2011 Civil Litigation Updates

California New Legislation Highlights

     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.

Happy New Year to Our Readers from Mike and Marc

 

 

We Wish You Health, Prosperity and Good Cheer for the New Year

Thanksgiving Off Topic: District Judge Woods Grants A “Writ Of Simcha”

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.”

     Happy Thanksgiving, everyone!

Off Topic: Bad Time To Be In Law School

Price and Job Prospects Are Real Negatives, At This Time.

     The November 13, 2010 edition of The Economist has an interesting article entitled “Trouble with the law.” Unfortunately, it tracks the struggling economic times and provides some interesting statistics and insights for law school graduates.

     *Between 1996 and 2008, private law schools’ median tuition fees almost doubled, to just under $34,000 a year.

     *For those choosing less expensive home state public schools, median tuition fees still trebled, taking the median to around $16,000.

     *In 2009, according to the National Law Journal, the 250 biggest law firms cut their attorney numbers by 4% and were projected to cut     another 1.1% in 2010--the worst two-year period in 33 years of the journal’s surveys.

     *One attorney of a globalized law firm opined that England and Germany do better at helping graduates make the transition to actual practice. Recent English law graduates spend 2 years combining work and study as a trainee solicitor. The same system is employed in the Referendar process in Germany. England does a good job of matching graduates to firms, while Germany produces exceptional legal technicians.

     *American clients still complain about being billed at high hourly rates for recent graduates who are being trained to “get up to speed” on the ins and outs of practice.

     The article ends with this somber observation: “Right now, many graduates wish they could get anybody to pay them for anything.”

Off Topic: ABA Lawyer Happiness Quiz--Questions 6 through 10

 

     Yesterday, we posted the first five questions on an ABA Lawyer Happiness Quiz on what it takes to make a happy lawyer. Here are questions 6-10, and the answers.

     6. Lawyers in what age range report the highest level of job satisfaction?

(A) Lawyers under 30

(B) Lawyers 31 to 40

(C) Lawyers 41 to 50

(D) Lawyers 51 to 60

Correct answer: (D)

     7. Which lawyers are happiest with their decision to become a lawyer?

(A) African-American

(B) Hispanic

(C) White

(D) Asian-American

Correct answer: (A)

     8. What aspect of the actual practice of law most disappoints lawyers, when compared to their expectations at the start of their careers?

(A) Their level of financial remuneration.

(B) The intellectual challenge of their job.

(C) Their ability to contribute to the public good.

(D) The quality of their relationships with their colleagues.

Correct answer: (C)

     9. How do lawyers compare to the general population on standard personality tests?

(A) They are more extroverted.

(B) They are more spontaneous.

(C) They are more introverted and future-oriented.

(D) There are no significant differences.

Correct answer: (C)

     10. How do lawyers born after 1980 compare to baby boomer lawyers?

(A) They are more intolerant of drudgery and feel less committed to their firms.

(B) They value compensation more.

(C) They are less sociable and care less about feedback.

(D) Young lawyers and baby boomers score about the same on all of the above measures.

Correct answer: (A)

     If you scored 7-10 correctly, you should feel happy; if you scored 4-6, you gave it a go; if you scored 1-3, better think about picking a different livelihood -- unless you fall in the 51 – 60 age group (see question 6, above).

Off Topic: ABA Quiz On Lawyer Happiness--10 Questions For You To Answer

Questions 1-5 Today.

     O.K., folks, time to go off topic and see how you attorney readers score.

     The November 2010 edition of the ABA Journal has a quiz developed by Professors Nancy Levit and Douglas Linder from the University of Missouri at Kansas City after interviewing more than 200 lawyers about professional happiness. What follows is the first five questions and answers in the quiz published in the November edition:

     1. The National Opinion Research Center at the University of Chicago surveyed workers in 198 occupations, asking whether they were “very satisfied” with their careers. Among the professionals surveyed were lawyers, doctors, accountants, clergy and teachers. Which of the possibilities below is correct in order of reported satisfaction for these five occupations?

(A) Doctors, lawyers, teachers, accountants, clergy

(B) Clergy, teachers, doctors, lawyers, accountants

(C) Teachers, clergy, doctors, accountants, lawyers

(D) Lawyers, doctors, teachers, clergy, accountants

Correct answer: (B)

     2. U.S. News & World Report places American law school into four tiers, with the first-tier schools being the most highly ranked. Lawyers who report the highest levels of career satisfaction are graduates of law schools ranked in which of the following four tiers?

(A) Top tier

(B) Second tier

(C) Third tier

(D) Fourth tier

Correct answer: (D)

     3. Which one of the following factors in the work of a lawyer correlates least with higher reported levels of career satisfaction?

(A) The degree to which the lawyer sees his or her work as contributing to the betterment of society.

(B) The latitude the lawyer has to make key decisions about the shape of work products and services.

(C) The amount of creative challenge his or her work affords. [BLOG OBSERVATION--this question does use “his” or “her” rather than shark-like “its” pronouns; very non-leading in nature.]

(D)The frequency and quality of interactions in the lawyer’s work.

(E) The lawyer’s level of income.

Correct answer: (E) -- wow, now we know why “its” was not used.

     4. How many lawyers find their work to be intellectually stimulating?

(A) 80%

(B) 60%

(C) 40%

(D) 20%

Correct answer: (A)

     5. Which order below of types of law practice corresponds to how satisfied lawyers in each practice type say they are with their careers?

(A) Big firms, small firms and solo practice, public sector work

(B) Public sector work, small firms and solo practice, big firms

(C) Small firms and solo practice, public sector work, big firms

(D) Big firms, public sector work, small firms and solo practice

Correct answer: (B)

     Questions 5-10 will be in a post tomorrow. Pretty interesting, huh?

We Wish All Our Readers a Restful Labor Day Weekend

 

Above:  Labor Day Parade, New York City, 1909.  Women on board the float of the Women’s Typographical Union.

BLOG BONUS – the history of Labor Day.

Off Topic: Answers To Actors Portraying ABA’s Top 25 Greatest Fictional Lawyers

Answers from August 3, 2010 Post.

Here are the actors portraying the ABA’s 25 greatest fictional lawyers as listed in the August 2010 edition of the ABA Journal:

1. Frank Galvin – Paul Newman.

2. Paul Biegler – Jimmy Stewart. Side note – the prosecutor in Anatomy of a Murder was none other than George C. Scott.

3. Perry Mason – Raymond Burr.

4. Charles W. Kingsfield Jr. – John Houseman.

5. Henry Drummond – Spencer Tracy.

6. Lawrence Preston – E.G. Marshall.

7. Jack McCoy – Sam Waterston.

8. Horace Rumpole – Leo McKern.

9. Chief Judge Dan Haywood – Spencer Tracy.

10. Sir Wilfrid Robarts – Charles Laughton.

11. Alan Shore – James Spader.

12. Vincent “Vinny” Gambini – Joe Pesci.

13. Lt. Daniel Kaffee – Tom Cruise.

14. Arnie Becker – Corbin Bernsen.

15. Arthur Kirkland – Al Pacino.

16. Hans Rolfe – Maximilian Schell.

17. Mitchell Stephens – Ian Holm.

18. Ally McBeal—Calista Flockhart.

19. Sandy Stern – Raul Julia.

20. Patty Hewes – Glenn Close.

21. Michael Clayton – George Clooney.

22. Jake Brigance – Matthew McConaughey.

23. Rusty Sabich – Harrison Ford.

24. Forrest Bedford – Sam Waterston.

25. Jonathan Wilk – Orson Welles.

Notables: 

     Rudy Baylor – Matt Damon (The Rainmaker); Andrew Beckett – Tom Hanks (Philadelphia); Denny Crane – William Shatner(Boston Legal); Eddie Dodd – James Woods (True Believer); Alicia Florrick – Julianna Margulies (The Good Wife); Owen Marshall – Arthur Hill (Owen Marshall: Counselor at Law); Ben Matlock – Andy Griffith (Matlock); Portia – Lizzy Carter (2009); Lynn Collins (2004); Ngarimu Daniels (2002); Andree Debar (1953); Sybil Thorndike (1922); Nellie Huton Briton (1916); Lois Weber (1914); Florence La Badie (1912); Julia Swayne Gordon (1908) (The Merchant of Venice); Ned Racine – William Hurt (Body Heat); Adam Schiff – Steven Hill (Law & Order); and David Wilson – Ken Howard (1984 TV); Theodore Roberts (1916 movie) (The Tragedy of Pudd’nhead Wilson).

     To the above, Mike and Marc would add: Arthur Banister – Everett Sloane (The Lady from Shanghai); Clinton Judd  -  Carl Betz (Judd for the Defense); and Charley Malloy - Rod Steiger (On the Waterfront).

     Greatest in pro per:  Hans Beckert – Peter Lorre (M).

 

Off Topic: Can You Name the ABA’s Top 25 Greatest Fictional Lawyers?

A Fun One to Give a Try.

     In the August 2010 edition of the ABA Journal, there is an article ranking the 25 greatest fictional lawyers. Excepted from the list is the likely most famous of all, Atticus Finch (from To Kill a Mockingbird) as portrayed by Gregory Peck. Now, we give you the ABA’s list of 25 greatest fictional lawyers. Can you name the actor who played him or her? Give it a try; answers will be posted tomorrow.

1. Frank Galvin from The Verdict; creator: Barry Reed.

2. Paul Biegler from Anatomy of a Murder; creator: John D. Voelker.

3. Perry Mason from Perry Mason; creator: Erle Stanley Gardner.

4. Charles W. Kingsfield Jr. from The Paper Chase; creator: John Jay Osborn Jr.

5. Henry Drummond from Inherit the Wind; creators: Jerome Lawrence/Robert E. Lee.

6. Lawrence Preston from The Defenders; creator: Reginald Rose.

7. Jack McCoy from Law & Order; creator: Dick Wolf.

8. Horace Rumpole from Rumpole of the Bailey; creator: John Mortimer.

9. Chief Judge Dan Haywood from Judgment at Nuremberg; creator: Abby Mann.

10. Sir Wilfrid Robarts from Witness for the Prosecution; creator: Agatha Christie.

11. Alan Shore from Boston Legal; creator: David E. Kelley.

12. Vincent “Vinny” Gambini from My Cousin Vinny; creator: Dale Launer.

13. Lt. Daniel Kaffee from A Few Good Men; creator: Aaron Sorkin.

14. Arnie Becker from L.A. Law; creators: Steven Bochco/Terry Louise Fisher.

15. Arthur Kirkland from And Justice for All; creators: Valerie Curtin/Barry Levinson.

16. Hans Rolfe from Judgment at Nuremberg; creator: Abby Mann.

17. Mitchell Stephens from The Sweet Hereafter; creator: Russell Banks.

18. Ally McBeal from Ally McBeal; creator: David E. Kelley.

19. Sandy Stern from Presumed Innocent; creator: Scott Turow.

20. Patty Hewes from Damages; creators: Glenn Kessler/Todd A. Kessler/Daniel Zelman.

21. Michael Clayton from Michael Clayton; creator: Tony Gilroy.

22. Jake Brigance from A Time to Kill; creator: John Grisham.

23. Rusty Sabich from Presumed Innocent; creator: Scott Turow.

24. Forrest Bedford from I’ll Fly Away; creators: Joshua Brand/John Falsey.

25. Jonathan Wilk from Compulsion; creator: Meyer Levin.

     Among notable characters not quite fitting into the ABA’s Top 25, include Rudy Baylor (The Rainmaker); Andrew Beckett (Philadelphia); Jackie Chiles (Seinfeld); Denny Crane (Boston Legal); Eddie Dodd (True Believer); Alicia Florrick (The Good Wife); Tom Hagen (The Godfather); Owen Marshall (Owen Marshall: Counselor at Law); Ben Matlock (Matlock); John Milton (The Devil’s Advocate);Portia (The Merchant of Venice); Ned Racine (Body Heat); Adam Schiff (Law & Order); and David Wilson (The Tragedy of Pudd’nhead Wilson).

     To the above, Mike and Marc would add: Arthur Banister (The Lady from Shanghai); Clinton Judd (Judd for the Defense); and Charley Malloy (On the Waterfront).

     Greatest in pro per:  Hans Beckert (M).

"Facebook Like" Feature Has Been Added to the Footer of Our Blog Posts

 

Easy Way for Facebook Users to Share Our Posts

     If you like one of our posts, and you subscribe to Facebook, the new "Facebook Like" feature, which has been added as a footer to our posts, provides you with an easy way to share the post with friends and colleagues.

     This is how our Typepad platform describes the new feature:

     "If a Facebook user hits the "Like" button at the end of a post, they highlight your post to their Facebook friends with an update to their own Facebook profile and a link back to your post. Any one who's friends with that person will see that update in their own Newsfeeds."

Off Topic: “APPROVED AS TO FORM AND CONTENT” Settlement Agreement Language Does Not Give Rise To Actionable Misrepresentation Claims To Opposing Counsel As Against Approving Counsel

Although Not a Fees Issue, Decision Is Of Interest to All California Litigators.

     For all you litigators out there, every wonder if signing “APPROVED AS TO FORM AND CONTENT” language in a settlement agreement might result in exposure to a person other than your client (especially an opposing counsel)? An opposing counsel sued on that basis, attempting to assert actionable fraud claims against the approving counsel—arguing that this recital was tantamount to a representation by approving counsel about the accuracy of the settlement agreement.

     The Second District, Division 4, in a 3-0 opinion authored by Presiding Justice Epstein, disagreed and affirmed the sustaining of a demurrer without leave to amend. The case is Freedman v. Brutzkus, Case No. B213489 (2d Dist., Div. 4 Mar. 11, 2010) (certified for publication).

Off Topic: Judicial Council Of California Releases Statistics Report For 2007-2008 Fiscal Year

 

Fast Track is Working, Jury Trials are Few for 2007-2008 FY, and Class Actions Have Increased Between 2000-2006.

     The “2009 Court Statistics Report” is available for reading from the Judicial Council of California, containing interesting statistics for all levels of the California judiciary for the fiscal year 2007-2008 time frame. It is available for reading at www.courtinfo.ca.gov/reference/3_stats.htm.

     Here are the highlights, divided by court level.

     California Supreme Court:

• For civil appeal and civil writ matters, it granted 5% of petitions for review.
• It ordered 14 Court of Appeal decisions depublished (compared to a high of 141 in 1988-1989).

     Courts of Appeal:

• Of 11,191 dispositions of appeals by written opinions, 9,470 were affirmed, 1,099 were reversed, and 311 were dismissed.
• Statewide, 9% of Court of Appeal majority opinions were published.
• The statewide median time from appeal to filing of opinion for civil appeals was 448 days.
• With respect to civil appeals, 68% were affirmed, 11% were affirmed with modification(s), 18% were reversed, and 3% were dismissed.

     Superior Courts:

• For unlimited civil matter dispositions, 70% were disposed of within 12 months, 86% within 18 months, and 93% within 24 months.
• For limited civil matter dispositions, 94% were disposed of within 12 months, 97% within 18 months, and 98% within 24 months.
• With respect to trials for all civil matters, only .1% involved juries, while 14.8% involved court (bench) trials.

     In a separate study for the 2000-2006 time frame, the Judicial Council disclosed that class action filings increased 63.3% while total filings dropped 17.8%. Employment cases were the most frequently filed class actions, representing 29.3% of the total. They also were the matters most frequently certified as class actions.

For Our Venerable Readers

     We have changed the font of our posts to Times New Roman, 14 pt.  It makes it easier for us to read what we have written.  Please let us know if you have a preference.

Happy New Year 2010 from Mike and Marc

A Happy, Healthy and Prosperous New Year to All Our Readers . . .

 

Mike, Marc, and Irving Wish Our Readers Happy Holidays

 

 

 

Three-Fer From Recent California And ABA Monthly Magazines/Papers

 

No. 1: Ellen Peck Reviews “Fees, Fee Agreements & Arbitrations” in December 2009 Edition of CALIFORNIA BAR JOURNAL.

     Ellen R. Peck, an Escondido sole practitioner and former State Bar Court judge, made these points in her recent California Bar Journal article:

• Except in limited circumstances, most private attorneys have to notify clients they do not carry legal malpractice insurance or that it has lapsed/been terminated (Cal.Rule Prof. Conduct 3-410);
• Incentive awards to class action representatives are discretionary and should not be a bargain point in a fee or retainer agreement (Rodriguez v. West Publishing Corp., 563 F.3d 948, 958-959 (9^th Cir. 2009));
• Interest calculations for collecting attorneys must be based on a 365 or 366 day year, not a 360 year, under penalty of being a False Advertising Act violation (Karton v. Dougherty, 171 Cal.App.4^th 133, 138 n.1 (2009));
• A retainer agreement’s predispute agreement for binding fees/costs arbitration is enforcement after Mandatory Fee Arbitration Act requirements are exhausted, with the State Bar website having a good sample form for such an arbitration clause (Schatz v. Allen Matkins Leck Gamble & Mallory LLP, 45 Cal.4^th 557, 574-575 (2009));
• A lawyer must consider withdrawing from representation or making disclosures to clients if he/she contemplates including a Civil Code section 1542 waiver in a settlement agreement with a client over a fee dispute, based on the legal malpractice waiver repercussions flowing from the release (State Bar Standing Comm. on Prof. Responsibility & Conduct Formal Opinion No. 2009-178)); and
• Lawyers are generally prohibited from charging, collecting, or receiving any advance fees or other compensation in connection with loan modification legal services (Bus. & Prof. Code, sec. 6106.3(a); Civ. Code, sec. 2944.6).

No. 2: Hon. Edward G. Weil Indicates Prior Settlement Communications In Fee Disputes May Be Admissible in His Article, “Are Settlement Talks Confidential?”, Published in the December 2009 Edition of CALIFORNIA LAWYER.

     Hon. Edward G. Weil, a Contra Costa County Superior Court Judge and former California deputy attorney general, cautions that prior settlement communications may be admissible in fee dispute litigation, especially private attorney general fee hearings, fee “catalyst” cases, and ambiguous settlement agreement disputes. He also has a nice compendium about the confidentiality and admissibility of settlement discussions in other contexts.

No. 3: Four Substantive Legal Practice Areas Dominate Malpractice Claims Since 1985, Reports James Podgers in “Practice Pitfalls,” Found In the December 2009 Edition of the ABA JOURNAL.

     The ABA Journal article confirms that, between 1985 and 2007 (based on information published in the ABA Standing Committee on Lawyers’ Professional Liability’s annual Profile of Legal Malpractice Claims), four practice field areas have been and still are at the top of the list: plaintiffs personal injury; real estate; family law; and estate, trust and probate. The percentage of all claims reported in the ABA study for 2007 in these top four practice fields break down this way:

• Plaintiffs personal injury – 21.56% (pretty steady, with 21.65% in 1995);
• Real estate – 20.05% (up the most in the top 4, with 14.35% in 1995);
• Family law—10.33% (up slightly, with 9.13% in 1995); and
• Estate, trust and probate – 9.68% (up some, with 7.59% in 1995).

Off Topic: Co-Contributor Marc’s Chicks … They May Now Be “Pullets.”

     Because co-contributor Mike does not want to quit the blog over Marc’s new pets (two chicks), he thought it better to give you an update instead.

     The chicks may now be at a more advanced stage such that they are more accurately characterized as “pullets.” Anyone other than farmers know what this means?

     A pullet is a young, domestic hen, usually under one year of age. The word comes from the old French word “poulet” or the Latin word “pullus,” meaning a young bird. This should be contrasted with a “biddy” or “hen,” which means an adult female chicken.

     However, there is a more sinister secondary definition that we hope does not apply. Some sources classify pullet as the “flesh of a medium-sized young chicken suitable for frying.”

     In any event, Marc will either be having great omelets or a nice chicken dinner.

                         I wonder what chicken tastes like?

Update to Contributors Page

Full Disclosure Compels Inclusion of Additional Pets.

     Co-contributor Mike pointed out that our contributors page failed to disclose the recent addition of some pets to Marc's household, and precipitously threatened to end his participation in this blawg unless the disclosures were updated for the benefit of our audience.  Therefore, the contributors page has been updated, and our readers can now see photos of Ampersand (&), Arroba (@), and two chicks (Mole and Kung Pao). 

California Appellate Courts: A New Survey Suggests Reversals Are “On The Rise” In Intermediate Courts of Appeal

Professor Uelmen’s Latest Survey Shows A Rise in Reversals.

     In the September 2009 issue of the California Lawyer, Professor Gerald F. Uelmen talks about the recent trends in California Supreme Court decision making, doing so in an article wickedly entitled “Too Much Togetherness?” Beyond this main topic, Professor Uelmen also has an interesting survey for the 2004-2009 period concerning affirmance rates for both the California Supreme Court and the various California Courts of Appeal. We thought we would share some of the findings with you. However, he basically concludes that there is a significant variance in affirmance rates among the various intermediate courts, while the overall affirmance rate by the Supreme Court has held somewhat steady.

     The overall affirmance rate for all cases during 2004-2009 for the California Supreme Court was 41.5%, a slight decline from the 45.9% rate for the earlier 1996-2004 survey period. (Professor Uelman observed that there was little difference between the affirmance rates for civil and criminal cases.)

     However, the real variance occurred among the District Courts of Appeal (in appellate parlance, the DCAs). We will keep to an examination of affirmance rates in civil cases.

• The Second District, Division 1 had the lowest overall affirmance rate, clocking in at 17% for 2004-2009 (compared to a 40% rate for 1996-2004).
• The honor for highest affirmance rate in the Second District went to Division 8, which had a 71% rate for 2004-2009 (which had no prior comparison rate because it was created in 2000).
• Overall, however, the winner of the highest affirmance rate went to our local Fourth District, Division 3 Court of Appeal, which had a 73% rate during 2004-2009 (as compared to a 22% rate in 1996-2004). Professor Uelman attributed this to significant turnover in the Santa Ana court between the two periods, positing that the new lineup has a closer affinity with the “Ron George” Supreme Court.

     Also, the Sixth District had the next lowest affirmance rate of 18% for 2004-2009 (as compared to a 38% rate for 1996-2004). After the Fourth District, Division 3 and the Second District, Division 8, the third highest affirmance rate went to the First District, Division 5, which had a 64% affirmance rate during 2004-2009 (up from a 42% rate during 1996-2004).

We Wish our Readers a Happy and Safe 4th of July

"Boo To Billable Hours" Available On-Line

 

From Innovation to Albatross.

     Our readers will know from our posts (January 7, 2009, February 1, 2009) that the concept of the billable hour is under attack by some lawyers and clients.  Fellow blawger, attorney John Derrick, has written an interesting book entitled "Boo to Billable Hours."   He has traced the history of the billable hour from the early 20th century, when it was initiated by the legal reformer Reginald Heber Smith, to its presented contested status.  Along the way, John Derrick asks what is wrong with the billable hour, why there is so much inertia to change, and whether there are better alternatives -- and he has constructive suggestions.  The book can be purchased from Amazon, or viewed on-line for free.  Check it out.

California Attorney's Fees Welcomes Appellate Lawyer John Derrick's Monthly Musings to the Blogosphere

Appeals Lawyer Blog Now Includes Monthly Musings Feature

     Certified Appellate Specialist John Derrick has added a "Monthly Musings" feature to his blog.  His first monthly musing is entitled, "Why do lawyers use 'Esquire?'".  Our article for California Litigation, "When the American Rule Doesn't Apply:  Attorney's Fees as Damages in California Litigation", was edited by John, who serves on the Editorial Board of the publication.  Mike and Marc look forward to reading John's elegant musings every month.

Arbitration Fee Award: Plaintiff Winning $4.1 Billion “Prove-Up” Arbitration Award Obtains $633,450 In Attorney’s Fees

Arbitrator Enhances Plaintiff’s Lodestar by 3.0 Multiplier.

     We give thanks to Cal Biz Lit, who in his June 16, 2009 post described a “prove-up” arbitration award of $4.1 billion stemming from a very unusual lost commission dispute. He notes that the award was confirmed as a judgment by the Los Angeles County Superior Court on May 28, 2009. See Chester v. iFreedom Communications Incorporated, et al., LASC Case No. BC353567 (with a copy of the judgment and arbitration award available from the Cal Biz Lit post).

     So, what attorney’s fees were awarded in this eye-popping award? Retired Orange County Superior Court Judge William F. McDonald, who is affiliated with JAMS, awarded lodestar amounts of $178,750 to one attorney and $32,400 to another attorney under various Labor Code fee-shifting provisions. Arbitrator McDonald then enhanced the lodestars by a 3.0 multiplier, which took the total fee award to $633,450.

     Interestingly enough, guess what the daily post-judgment interest is on the total judgment? Believe it or not, $1,125,159.97 per day!

     Although we co-contributors usually do not comment on the merits, it does appear that the fee award was well within the realm of reasonableness.

     BLOG UNDERVIEW—Although common lore among attorneys has it that arbitrators seldom award punitive damages, that folk wisdom did not hold up in this case. Arbitrator McDonald awarded $2,926,276,674.27 in punitive damages to plaintiff.

Plaintiffs’ Class Action Attorneys Seek $23.5 Million In Fees and Costs In Orange County Register Carrier Settlement

Register Claims Plaintiffs’ Attorneys Are Seeking About $10 Million More Than They Agreed to Claim.

     In our December 1, 2008 post, we summarized a settlement reached between a plaintiff class and The Orange County Register in an Orange County Superior Court complex case pending before Superior Court Judge David C. Velasquez. The case primarily involved newspaper carrier claims that they were effectively employees who had not been granted paid certain wages and other benefits owed to them. In the settlement as reported by the press, the plaintiff class agreed that the Register would pay carriers up to $22 million and their attorneys up to $14 million (inclusive of $2 million in costs).

     Now, an imbroglio is brewing over the plaintiffs’ fee request, scheduled for hearing on June 25, 2009 before Judge Velasquez.

     Plaintiffs’ lead counsel Daniel Callahan has upped the fee/costs request to $23.5 million, which is 160% of the monetary settlement to the carriers. The Register was not amused, opposing the fee request as “an unabashed embrace of avarice” and a renege on the prior fee cap deal forged in the settlement. Register’s lead attorney Thomas Nolan also stated that plaintiffs’ counsel “shamelessly asks this court to sanction an award that is $7 million more than the [plaintiffs] will receive and $10 million more than plaintiffs’ counsel had assured [the paper] that they would request.”

     Mr. Callahan defended his increased fee request on numerous grounds: the lawsuit protected the public from orders by the Register that carriers drive on the wrong side of the road; he won working condition improvements for current carriers; and his firm waged an “underdog” fight against a defendant that he characterized as a consummate “obdurate defendant” that “stonewalled the plaintiffs at every turn.”

     Mr. Nolan argued that $3.7 million would be a reasonable fee, and that plaintiffs’ fees should be reduced to deter lawyers from making future unreasonable demands.

     For more details on this brouhaha, see John Gittelsohn’s article “Attorney seeks $23.5 million for waging suit against the Register,” which was printed in the June 15, 2009 edition of The Orange County Register (and also available for reading at its website).

Attorney’s Fees In the News …. Al Franken Is A Little Richer From Award in U.S. Senate Race Lawsuit

Minnesota Intermediate Appellate Court Orders $95,000 Paid to Well Known Saturday Night Live Cameo Performer.

     Al Franken, a well-known guest performer on Saturday Night Live, ran for a U.S. Senate post against Norm Coleman. A Minnesota appellate court found that Mr. Franken had received 312 more votes than Mr. Coleman in last November’s election, a determination being appealed to the Minnesota Supreme Court.

     Recently, the Minnesota court ordered Mr. Coleman to pay Al $95,000 in fees (out of his original $160,000 request) related to Coleman’s lawsuit over the still-unresolved Senate race. Coleman had asked the three-judge panel to delay a decision on the cost reimbursement until the Minnesota Supreme Court finishes its review, a request that apparently was nixed.

      Because we are scrupulously non-partisan, we quote news correspondent Emily Litella:  "Never mind." 

     For more on this story, see Elizabeth Stawicki’s June 10, 2009 story available for reading at minnesota.publicradio.org.

Attorney’s Fee Awards And Fee Requests In The News … Redwood City Gets Tagged, E*TRADE Financial Will Seek Large Fees, and Bluetooth Class Action Plaintiffs’ Lawyers Seeks Fees Drawing Numerous Objections

Redwood City Assessed About $260,000 Under Private Attorney General Statute.

     Redwood City lost a CEQA challenge by local attorney Joe Carcione (son of Joe Carcione, the Green Grocer) who sued arguing that the EIR

was inadequate for the “Downtown Precise Plan,” a plan with a vision for up to 2,500 new high-rise housing units in a pedestrian-friendly shopping district of the City. Specifically, San Mateo County Superior Court Judge Marie Weiner ruled that (1) the EIR failed to have a “shadow study,” i.e. examining whether allowing buildings up to 12 stories high could cause shadowing on shorter downtown buildings (including Mr. Carcione’s law offices); and (2) the City inadequately studied how historic buildings in downtown Redwood City might be impacted by a development swell.

     Mr. Carcione apparently moved for attorney’s fees under California’s private attorney general statute, Code of Civil Procedure section 1021.5, asking for reimbursement of his full $350,000 in legal fees. On May 28, 2009, Judge Weiner awarded Mr. Carcione $260,000 in fees, apportioning out the fees for the “shadow study” issue (because his law offices had a personal stake in the issue) and awarding full fees for the historic resources issue (because he had no personal stake in defending this issue).

     Redwood City had paid an outside attorney about $107,000 over three years to defend it in the Carcione suit. It has been projected that redoing the plans for the project with the help of outside consultants may cost roughly $250,000. Adding all these expenses (plus the fees award to Mr. Carcione), the Downtown Precise Plan will cost more than $600,000 just for litigation-oriented fees and redo costs.

     For more information on this situation, see Shaun Bishop’s story, “Redwood City’s tab for defending flawed downtown plan grows,” which was posted on June 4, 2009 at the San Jose Mercury News website.

             Library of Congress photograph.  The Courthouse, Redwood City.

E*TRADE Financial Will Seek Large Fees After Winning Over $18 Million In Contractual Breach/Interest Damages.

     Following a three-week bench trial before United States District Judge Robert Sweet of the Southern District of New York federal court, E*TRADE Financial Corporation was awarded over $18 million in contractual breach damages and prejudgment interest in a four-year lawsuit against Deutsche Bank AG.

     Importantly, the district judge ordered Deutsche Bank to pay E*TRADE attorney’s fees in an amount to be determined in a postjudgment proceeding.

     We will keep you apprised on the fee proceeding in this case—although it is likely to be large.

Bluetooth Headset Proposed Class Action Settlement Draws Lots Of Objections When Class Attorneys Seek Over $800,000 Even Though Class Members (Other than Representatives) Receive No Payout.

     In In re Bluetooth Headset Products Liability Litigation, Case No. 2:07-ML-01822-DSF-E (C.D. Cal., assigned to U.S. District Judge Dale S. Fischer), seven law firms represented plaintiffs in a putative class action over economic losses purportedly caused by inadequate warnings of the need for volume control in Bluetooth headsets.

     The law firms, on behalf of the class, seek to obtain final approval to a proposed, pre-certification settlement in which nothing will be paid to the absent class members, $800,000 will be paid to the class attorneys, $100,000 paid to charities that are neither class members nor have suffered any injuries, and $12,000 will be paid to the representative plaintiffs. Also, class members retain the right to pursue claims for physical injury and the right to seek future injunctive relief, with defendants apparently making their use warnings more definite in nature.

     This proposed settlement has drawn a firestorm of protests from many, many objectors. Based on several cases from different federal appellate courts, objectors have argued that the proposed settlement is essentially “self dealing”—either a “sellout” of the attorneys’ and class representatives’ fiduciary duties to the class or a mertiless lawsuit brought to only obtain leverage for the representatives’ benefit. See, e.g., Murray v. GMAC, 434 F.3d 948, 952 (7^th Cir. 2006); Mirfasihi v. Fleet Mortgage Corp., 356 F.3d 781, 785 (7^th Cir. 2004); Crawford v. Equifax Payment Services, Inc., 201 F.3d 877 (7^th Cir. 2000); Molski v. Gleich, 318 F.3d 937, 953 (9^th Cir. 2003).

     The fairness hearing on the proposed settlement and objections is slated for July 6, 2009.

     If you would like to see a representative objection, see Ted Frank’s objection referenced in a post of his at overlawyered.com.  Mr. Frank is a resident fellow at the American Enterprise Institute and a frequent contributor to overlawyered.com.

 

Fees In The News …. Alhambra Police Officers Association Seeks Fee Award Of $40,000 For Successful Restraining Order

Fee Hearing Is Set for June 26, 2009.

     In October 2008, the Alhambra Police Officers Association brought suit to obtain a temporary restraining order to prevent officers from having to attend an October 18 “block party” for Councilman Gary Yamauchi (who was re-elected a month later in November). The Association did obtain a restraining order and then dropped the lawsuit given that the officers apparently opposed Mr. Yamauchi’s candidacy.

     Now, at a hearing set for June 26, 2009, the Association is asking the court to order the City of Alhambra to pay $40,000 in attorney’s fees that the Association spent on the lawsuit.

     Earlier in 2009, the City settled with 40-50 police union members, agreeing to pay them wages for “donning and doffing” (the time spent on for putting on police equipment before coming to work) and about $2,500 each in back pay.

     For more details on the Association-Yamauchi re-election events, see Alfred Lee’s story, “Alhambra police union seeks attorneys fees from lawsuit,” which was posted on May 31, 2009 and available for reading at pasadenastarnews.com.