May It Please The Court
Quote of the Day - Republicans believe every day is the Fourth of July, but the democrats believe every day is April 15.
Happy 4th of July, Grandpa Walker
Grandpa Walker would be proud - the flags are out and the fireworks are going off tonight. He used to say that the whole country celebrated his birthday. My grandfather was born on the 4th and raised in the area of Pennsylvania that's once again under water.
A jowly, slightly bald man, James B. Walker stood some six feet tall and put away about six cigars a day despite being a charter member of the West Pittston Fire Department. He taught me how to play pinochle and pool (almost as soon as I could see over top of the table) as a young boy at the Hose House, as he called it. But no matter what, his front porch flag was out and flying in all its glory every 4th of July, the staunch Republican that he was.
Hat's off to you, Grandpa. I'll smoke a cigar in your memory.
How Should California's Judges Be Educated After They Get On the Bench?
Should judges be required to attend mandatory continuing judicial education? According to today's Daily Journal, two prominent judges, Thomas E. Hollenhorst and Julie Conger (scroll to fifth paragraph), don't think so. California Supreme Court Chief Justice Ronald George, on the other hand, argues that judges should. Presently, California's judicial education system is voluntary. The two judges have threatened to resign from the California Judges Association Ethics Committee if the CJA does not oppose the change.
The judges opposed to the change argue that the proposed mandatory system is "unnecessary, insulting and unconstitutional," according to a quote in the Daily Journal (no link provided because subscription required). California, however, is in the definite minority (link is .pdf file) on this one: 75% of the 50 states had mandatory judicial education programs in 1995. The incoming president of the California Judge's Association, Scott Keys, will have his hands full with the issue of mandatory judicial education.
In contrast to the system that applies to judges, California has a mandatory continuing legal education program for its lawyers. We must rack up 12 hours of CLE each year, a total of 36 in three years. The proposal for judges requires 30 hours in three years.
Should our judges be required to attend mandatory education classes? What's your vote?
The Who, What, How, Why, Where and When Of Legal Blogs
How many legal blogs are out there compared to the number of lawyers? According to the ABA, there are over 1,100,000 lawyers, and based on U.S. Department of Labor Statistics, about three-fourths of us actively practice. Of that, according to this article which cites to Lexblog's Kevin O'Keefe, there are something under 2,000 legal blogs, or about one percent of lawyers.
Who reads blogs? According to the same article written by lawyer Ari Kaplan, who is an extensive writer but not a blogger, more than 20 percent of senior business executives do, a figure given to us by fellow Law.com blogger Cathy Kirkman.
Why then are there so few lawyer blogs, asks Ari? He points to the time commitment required, the nonentrepeneurial, conservative mentality of larger firms and their management and a lack of understanding of the marketing reach of legal blogs into the corporate world. Although I wasn't asked, MIPTC would add to that list the fear of technology. Every day I run across many lawyers who don't have email addresses and even more who ask their secretary to check email as if it were a fax machine. Until lawyers embrace technology, the province of legal blogs will remain in the hands of the few, making later entry even more difficult.
What can be done? Some of us are evangelists about it. We speak regularly about legal technology and blogging, and show others how it can be done.
Where should you start? There are a myriad of easy to use start up blogging platforms out there: Typepad, Blogger, Wordpress, Moveable Type and the like, to name just a few. Or, like MIPTC, you could build your own and link it to your own law firm's website. Heck, you might even want to try a podcast.
When is the best time? Now would be good. New Years' resolutions aside, Christmas can come in July.
Is there a benefit? Think about it this way: How did you find this post? Did you read other legal blogs referenced over there on the left side of this blog (called the "Blogroll" on the "Left Navigation Bar")? Did you learn anything as you poked around? If you did, then it's likely your clients did the same thing.
Here's the true test, though. Ask your clients, and see if current statistics (one out of five) regularly read blogs. You'll likely find it's more like two out of five, and increasing every day. After all, you're here, right? Then it's likely your clients are too, and maybe some of this firm's future clients.
Divorces From The Grave - The Newest Legal Trend In Family Law And Probate
This one falls into the category of "I can't make up stuff this good." You read that headline right: several states, nearly 18 in all, with more on the way, have apparently revised their probate laws to provide that if a person in the midst of a divorce dies before finalizing the divorce and there's no will, then the spouse inherits. In one particularly telling instance, this National Law Journal article cites an instance where a man who was to sign divorce papers virtually died with the pen in his hand, but hadn't yet changed his will.
You guessed it, the almost-but-not-quite-former spouse ended up with his inheritance, and not those relatives who he wanted to receive his largess. Nothing spawns litigation faster than a intended beneficiary who didn't get what was intended, especially when there's a lot that was intended to be gotten.
Situations like that one have led to lawyers seeking posthumous divorce decrees to ensure the money goes where it was intended to go, especially when it's fairly obvious that the almost-but-not-quite-former spouse was not supposed to get anything.
There is a moral here: if you're in the process of getting a divorce, change your will. Now. Before something happens that you didn't intend.
Coast to Coast Internet Radio Goes Off the Clock
Lawyers make up one of the hardest-working professions and it's likely few lawyers will deny that statement. What do lawyers do outside the courtroom and the legal practice? Coast to Coast shatters the belief that lawyers are one dimensional and dominated by the minute details of the law with this podcast.
Join me and my fellow Law.com blogger and attorney Bob Ambrogi as we look into the “Fun Side of Lawyers.” Our nationwide search for 'fun' lawyers turned up four guests for this show. We host Attorney Noley Bice, General Counsel at the Baylor University Law School, an Elvis Presley impersonator; Attorney Elena Albamonte, who although she spent most of her legal career at the federal government, she's the President of Lawyers in Love; Attorney Grant Hardacre from Blum, Propper & Hardacre, Inc., the President of the Association of Surfing Lawyers; and, Attorney Paul Kenney, trial lawyer and partner at Kenney & Conley, P.C, a musician, composer, book author and screenwriter.
Don’t miss the fun for the long weekend, and get out there and find your own hobby.
The Boilerplate Of Oral Contracts
"The big print giveth and the small print taketh away." This case between an actress and her personal manager more than proves that adage, especially since the contract wasn't written. This one ought to be good.
Seems that Rosa Blasi (link somewhat safe to open at work) who isn't a doctor but plays one on TV in the Lifetime show, Strong Medicine, got into a dispute with her personal manager and ended up on the defense side of a lawsuit. Her manager sued under the terms of an oral contract alleging it was owed 15% of her earnings based on the terms of the contract, which Blasi had supposedly refused to pay. What contract you may ask? The oral personal management contract.
Blasi's defense was that her manager wasn't a licensed talent agent, and thus under California law her manager couldn't collect the fee. The trial court agreed, and granted judgment in her favor. The manager appealed.
The manager countered that the contract was actually two-fold: one to obtain employment and the other to manage the actress. The former required a license, the latter did not. Moreover, the manager contended that the licensing statute did not require the manager to forfeit the portion of the contract related to obtaining the audition and TV show for the actress. Therefore, the manager was entitled to be paid, and even if it did need a license and had to forfeit a portion of the monies, the two contracts were severable and its failure to hold a license didn't invalidate the entire contract, or so that argument went.
The court of appeals agreed and gave the manager a "do over" and sent the case back to the trial court to determine whether the oral contracts were severable. Most written contracts, somewhere in the boilerplate, generally contain a "savings clause," commonly known as a severability clause. When one provision in the contract is determined to be illegal, that one provision doesn't invalidate the entire contract.
I don't know how you determine whether such a provision exists in an oral contract., especially since both sides will likely claim the exact opposite, if this appeal is any indication.
Ya gotta love LA. A TV doctor testifying about oral contracts and a personal manager drafting them.
CraigsList Finds Friends In Battle Against Newspapers
CraigsList is a favorite of mine, not because of the namesake, but because it's relatively low-tech, easy to use and productive. It's kind of an online garage sale, without having to get up early to get the good deals. But as MIPTC has reported before, CraigsList is in trouble.
The service has been sued by a group of Chicago lawyers* alleging that it violated The US Department of Housing and Urban Development requirements to ensure nondiscriminatory housing ads. In contrast to newspapers that comply with HUD requirements by screening ads, CraigsList does not. On the other hand, ads on CraigsList are free and posted by individuals. Ads in newspapers cost, and they are posted by newspaper staff. That distinction may save CraigsList in this lawsuit, but Judge Amy St. Eve in Chicago will be the one to decide that point.
It didn't help that CraigsList has taken a lot of housing ads away from newspapers, which may be the real genesis for the lawsuit. Especially when the ads are free. That's a lot of lost revenue, and the HUD claim is a creative attempt to stopgap that lost revenue stream.
But it may not be so easy. CraigsList's defense has been joined by the likes of Google Inc., Amazon.com Inc., AOL and Yahoo Inc., according to this National Law Journal article written by Lynne Marek (subscription required). These online companies, along with eBay, Inc. (which owns a 25% stake of Craigslist) filed an amicus curiae brief before Judge St. Eve. The friends of the court argue that CraigsList is protected from liability for HUD violations in the same way the phone companies and Internet providers are protected from liability for violations of the law occurring over their wires.
The article also notes there's a similar suit pending against Roommate.com in the Ninth Circuit. The CraigsList suit is pending within the jurisdiction of the Seventh Circuit, so it's somewhat of a race to the courthouse to find out which circuit first rules which way.
*After initial publication and in response to research generated by the comment below, I edited this paragraph to correct my statement that newspapers had sued Craig's List. MIPTC regrets the error.
FEMA Disaster Relief Judicially Elevated To Property Right Entitlement
Did you know you're entitled to federal disaster relief if you've been a victim of a disaster? New Orleans Federal Judge Stanwood R. Duval, Jr. thinks so. A property interest, that is. Presumably given that ruling, if the federal government failed to provide disaster relief, then victims would be entitled to file an eminent domain case against the government.
Admittedly, the Federal Emergency Management Agency was the defendant in the class action suit filed last year by thirteen homeowners whose homes had been destroyed but not received any disaster relief, so victory was probably a foregone conclusion. No one in the country wants to see the government abuse citizens like that, especially since we all pay taxes to provide just that kind of assistance.
But a property right?
MIPTC is unaware of any other case ruling that victims are entitled to federal benefits, and hasn't been able to find this opinion online. In the aftermath of Hurricane Katrina, most taxpayers would assume FEMA freely made payments to people who suffered losses, so while we may think victims are entitled, most would likely not assume the right to financial assistance was automatic. FEMA argued its decisions whether to award financial assistance was discretionary, and it was immune from suit based on sovereignty. It also argued victims were required to first apply for small business loans and meet other criteria before receiving free financial aid.
Judge Duval's ruling also recognized FEMA had provided sufficient due process to the victims, but elevated disaster assistance to a property right. MIPTC applauds the court for sticking up for the victims of Hurricane Katrina and later FEMA, but wonders whether this determination went too far. You can bet we'll see an appeal of this case, and this property interest portion of the ruling will be overturned.