May It Please The Court
Quote of the Day - Jury verdicts became highly suspect and were frequently overturned for a variety of ever-expanding reasons, ... Jury assessments were wiped out by increasingly harsher standards for mental anguish and punitive standards.
Modesto Contamination Punitive Damages Cut By Ninety Percent
Back in June, MIPTC reported that the City of Modesto won a $175 million verdict against Dow Chemical, Vulcan Materials and a third and much smaller company, R.R. Street. I also opined that the verdict wouldn't last.
Today, the Daily Journal reported that San Francisco City & County Superior Court Judge John Murther, who presided over the jury trial, cut that verdict to just under $13 million. Vulcan Materials' share is just over $7.2 million and Dow's verdict dropped to $5.4 million. R.R. Street stayed at $75,000 (in part because it didn't seek to overturn the jury's award). The total is four times the amount of a compensatory damage awarded by the jury.
While the parties are back to a result more in line with recent U.S. and California Supreme Court guidance, we have yet to see what will happen on appeal, which may follow this ruling or may wait until evidence on the other 40 allegedly contaminated sites is heard by the jury. This ruling resulted from evidence on only five of the sites.
Dow and Vulcan asserted defenses based on state-of-the-art knowledge at the time the contamination occurred, and will likely seek to overturn the jury's verdict(s) altogether. That appeal will present issues on state-of-the-art arguments, which may (or may not) be recognized as valid defenses.
Pro Per Plaintiff Leaves No Doubt What He Thinks Of The Lower Court Proceedings
I'll go out on a limb here and predict George C. Swinger, Jr. loses the appeal, too.
Leaky Condo Roof Turns Seller's Failure To Disclose Into Costly Exercise
You buy a condo with a leaky roof, and the seller did not disclose the leaks. To top it off, shortly after you buy this pig-in-a-poke, the homeowner's association levies a $15,000 assessment against you to repair the leaky roof. You're not happy.
To top it off, you discover shortly after you move in that the seller was the president of the homeowner's association. Now, you're really not happy. Not surprisingly, you ask the seller to pay the assessment.
Seller refuses, and instead sues you and the homeowner's association.
Exactly what the Court of Appeals (and the trial court) thought. Technically speaking, both courts agreed with the homeowner's association that the seller didn't have standing to sue the HOA because seller was no longer an owner.
HOA walks away from this case with a sizable award (over $25,000) of attorneys fees and costs for the trial and the appeal. The buyer won a defense verdict, and the attorneys fees and costs (presently calculated at over $200,000) is still progressing, but it's not going to take a crystal ball to figure out how it will turn out. MIPTC predicts the seller will have to pay those fees and costs. The best defense turned out not to be a good offense.
Oh, and by the way, the buyer offered in the beginning to settle the whole darn mess - prior to litigation - for $7,000.00.
BloGher Advice: Stop Making (A-) Lists And Link To Me
Advice heard and followed. See MIPTC's new blogroll for BloGher bloggers over there to the left. More submissions welcome - send an email to jcraigwms (at) wlf-law (dot) com.
Just for the record, MITPC has not ever created an A-list of bloggers, but as I learned this weekend, if there is one, Dooce better be on it.
Is The Writing On That Napkin A Contract?
Contracts can come in all shapes and sizes, and in the words of my contracts professor, Eric Andersen, even on eggshells. That's right. He litigated a case involving a contract written on an eggshell. When I saw an article about a contract on a napkin, it didn't surprise me. Now that I've been practicing law almost 20 years, not much about the law surprises me anymore. People do the silliest things. But that's a different story for a different post.
Lawyers are trying to find way to recover for clients who made "the pitch" to Hollywood execs only to be turned down but then find their idea on the small or big screen. MIPTC extensively covered the fallout from the Grosso decision, and predicted this type of creativity. It used to be that the studios immediately removed copyright claims to federal court, where federal judges just as promptly dismissed them. Then came the Ninth Circuit's decision, which opened Pandora's box and increased the causes of action available to screenwriters and others to include state court claims for breach of contract.
The question then becomes what constitutes a contract? Yes, it's possible to have a contract on a napkin, but it has to contain the essential elements of the contract and be signed by the party to be charged with performance - the screenwriter and the studio exec.
But don't count on getting a studio exec's signature anytime soon. Studio contracts frequently say they won't pay for generic ideas, and it's more likely that exec will put a contract in front of screenwriters that disclaims liability and likely includes a waiver of that screenwriter's claims against the studio. That arrangement makes it difficult to conduct business, and requires that lawyers get involved on both sides early in the process - even before the pitch is made.
What do both sides expect from the pitch? What determines whether an idea is generic or specific? What rights belong to each party as ideas are exchanged and built upon?
There are no easy answers, but pitches without copyrights are unprotected, and without a signed contract, they're still not protected. As the old saw goes, an oral contract is about as good as the paper it's written on.
How Landis Handles The Court Of Public Opinion Offers Businesses A Case Study Opportunity
When the Court of Public Opinion turns its harsh light on you, how do you respond when you're in crisis mode? Let's take the doping charges facing cyclist Floyd Landis. Public relations wonks recommend immediate and full disclosure, along with a mea culpa, if appropriate. That advice makes stomachs of business lawyers do somersaults, especially when the Court of Public Opinion transforms into a court of law.
Right now, Mr. Landis steadfastly denies using any illegal substances that may have elevated his testosterone levels. Unless he's prepared to give up the title, he really can't say much else. If he issues a mea culpa, not only will he immediately drop out of the news, but he will also lose his victory. He doesn't have too many choices. It's defend or die. The Court of Public Opinion, however, may not be so harsh to businesses. But how do you communicate to your audience?
You can expect to hear those statements later in trial; there's no privilege that applies to exclude them from evidence. Then again, most cases settle, so should you even worry? Isn't the Court of Public Opinion more important? That depends on your audience, and how you want to be remembered. In Mr. Landis' case, his court trial will come quickly. Testing will be done immediately and evaluated by the officials at the Tour de France. In business, that trial won't come for a year or more, if ever.
But Mr. Landis' audience isn't the Tour de France. Or is it? Without the winner's title, there is no Court of Public Opinion. The second link in this post points to an Associated Press story that advises Mr. Landis to get a good - in fact a great - attorney. Should the AP's advice really advise Mr. Landis to get a good - in fact a great - public relations consultant instead?
MIPTC thinks perhaps both is best. The general advice of a PR consultant is to over-communicate extensively and consistently - both within and outside the company. At the same time, however, just prior to offering that extensive and consistent communication, check with your lawyer who can provide counsel about the effect of your statements down the road when you get to the court trial, if the crisis turns into litigation.
How would you handle Mr. Landis? What spin would you give the doping scandal? Who should speak - Landis or his lawyer? Like most, MIPTC believes Landis should speak to the public and his lawyer should speak to the Tour officials, and probably with a medical expert on testosterone.
Whatever the outcome, this situation presents a good case study on how businesses can handle the Court of Public Opinion, and the circus that comes with it.
Is Your Blog Fully Accessible? Check Out Skye's Twelve Tips For Compliance
You may have an easy time reading this blog if you are completely abled. If you're not, then it is apparently more difficult than I realized. For example, I thought we complied because MIPTC features a text-only site. While MIPTC has made a special effort to provide an Americans with Disabilities Act-compliant site, I leaned today that we still have more to do to be friendly for all. At today's BloGher conference in San Jose, Blogger Skye Kilaen offered a presentation that many blawgs may want to consider.
Here are some of her recommendations:
(1) Create a strong color contrast between the text and the background. Black text on white background is preferred by people who have a difficult time seeing.
(2) Label your images. Those who are blind and use screen readers will have the benefit of your description of the photograph. Otherwise, they just hear just how the photograph was saved by the digital camera: "0072806.jpg."
(3) Resist visual CAPTCHAs. A CAPTCHA is that small screen of letters and numbers you have to somehow read and then input in the correct sequence to successfully leave a comment on a blog. MIPTC banned them just last month because they were too hard to use, even for those with full eyesight.
(4) Move your navigation bar to the right side or add a command for a screen reader to skip to the text of your most recent post. Otherwise, a blind person has to listen to your entire blogroll before getting to your topmost post.
(5) Use relative font sizes instead of point- or pixel-based fonts. MIPTC's text-only site complies with this recommendation.
(6) Check your widgets (your calendar, blogroll and the like) to ensure they're screen-reader friendly. You can check your site by loading it and then hitting the Tab key to navigate it. If you get stuck, it needs to be reworked.
(7) Break your post into paragraphs. More white space makes it easier for everyone to read. This post is a prime example. Imagine how hard it would be to read if these paragraphs ran together as one, continuous post.
(8) Make your link text explanatory. For someone who's listening to your site, links labeled such as "here" "here" and "here" don't mean much. Describing them as "See the full opinion of the court" has more meaning to describe the link. I've been guilty of that practice, but now know to change.
(9) Don't open new windows from links without warning people. MIPTC gives this warning, fully disclosing the practice in the site's Primer.
(10) Change the style of visited links. When someone has clicked on a link, left your site and then comes back to it later, navigation to the spot where that person left is much easier to pinpoint if the previously-visited links are a different color.
(11) Use more than color cues for links. For people who are color blind, red and green links are indistinguishable. Adding an underline feature makes a hyperlink easier to see.
(12) Use punctuation. Screen readers pause for punctuation. Otherwise, your post is just one long monotone of words.
For more tips, you can visit Skye's sites at lizardkingdom.org, lonestardemocracy.org and heroinecontent.org. You can get the full range of tips from Knowbility. You can also expect some subtle changes at MIPTC over the next several months as we implement these recommendations.
Coast to Coast Internet Radio Turns Corporate
In-house counsel can be one of the most coveted jobs in the legal field - and with good reason. Join me and my Coast to Coast co-host and fellow Law.com blogger Bob Ambrogi as we get the lowdown on these high powered men and women of the legal world, their salaries, bonuses, perks and other benefits.
You can join our guest from the legal magazine, Corporate Counsel, which compiles a list of the 100 Highest Paid General Counsel every year. Bob and I welcome Robin Sparkman, the Editor-in-Chief of Corporate Counsel magazine, to Coast to Coast to discuss the ins-and-outs of this survey. Don't miss it.