May It Please The Court
Quote of the Day - When I was in England, I experimented with marijuana a time or two, and I didn't like it and didn't inhale and never tried it again.
Triple Play At The Border
If you're traveling across the border, your Constitutional freedoms are drastically curtailed. Witness yesterday's three rulings from the Ninth Circuit: U.S. v. Flores-Montano, U.S. v. Chaudhry and U.S. v. Hernandez.
Border inspectors don't have to have any reasonable suspicion of wrongdoing to inspect your gas tank, drill a small hole in the bed of your pickup truck or remove car door panels. It's almost as if they can pretty much take your vehicle apart and put it back together, even if it ends up with a hole in it or not all the parts reattached. In each instance, however, the Border agents found marijuana, not bomb-making materials.
If 9-11 hadn't occurred, would these cases be decided differently?
Coast To Coast Internet Radio Program On Hurricane Katrina's Effect On The Legal Commmunity
Today's internet radio program, Coast to Coast on the Legal Talk Network, with me and my co-host, Robert Ambrogi, gives you the latest from the legal community crippled by Hurricane Katrina. You'll hear first-hand accounts from Louisiana attorneys and blawggers, Ernie Svenson and Raymond P. Ward, both of whom have temporarily relocated their practices. Their compelling stories contrast with their amazingly positive attitudes, considering the devastation and long-term effects for them, their clients, the courts and the legal community in the area.
Texas courts have opened up their big hearts to help the legal professionals from the Gulf Coast. In the program, you'll also hear from Texas State Supreme Court Justice Dale Wainwright, President of the Texas Bar Eduardo Roberto Rodriguez (Adobe download) and former President of the Texas Bar, Kelly Frels.
The audio program also provides a number of helpful links. Click on the podcast icon below and give a listen, or download the podcast from MIPTC's Podcast RSS feed.
California Discovery Allows A Little 'Play In The Joints'
Every once in awhile, you even might find one of those rulings helpful. Take, for example, the dispute between Sputtered Films, Incorporated (Tegal is the successor corporation) and Advanced Modular Sputtering, Inc. No, it has nothing to do with Hollywood, but everything to do with applying a thin film to silicon wafers used in fabricating printed circuits. Yes, I know, boring, compared to films. The decision, though, gives much-needed insight to discovery rules and trade secret issues.
This ruling represents the first time California courts have buckled down and addressed the issue of conducting discovery of another company's trade secrets. Discovery statute California Code of Civil Procedure section 2019(d) (scroll down) requires that you first identify your trade secret with reasonable particularity before you can start to conduct discovery of how the other party might have violated your trade secret. Before today, we had no guidance on this point. There has been some concern recently expressed about what disclosure that really meant.
Think about it. As a company, you sue a former employee who's out there stealing your customers and applying what she learned at your company to take your business away, and you have to reveal your trade secrets in order to find out what your former employee is doing? Did the legislature get that backwards when they drafted that statute? Nope, that's the way it's written, and the way the courts have to interpret it. Here, our battling parties were in just that situation. Sputtered Films alleged that two of its former employees used trade secrets they learned while employed to steal customers, and start their own company.
Sputtered Films tried several times to describe its eight trade secrets to the trial court in order to begin the discovery process to learn what their former employees were up to. They couldn't convince the trial court that they had a trade secret, and took the denial to higher courts.
The Appellate Court was none too pleased with the actions taken by the parties in the discovery squabble. Indeed, they first declined the writ (not surprising because practically all discovery writs are summarily denied). The parties, however, would not let the dispute rest, and took their case to the Supreme Court, who ordered the Appellate Court to give a listen. Listen they did, and they were none too happy with what they heard about what the parties had been squabbling about so far.
Leave it to dueling experts - and lawyers - to get the court up in arms: "As a result, the parties have created a voluminous record, expended thousands of dollars on attorneys fees and expert witnesses, and consumed considerable judicial resources without ever even beginning to conduct discovery," the Court said in its opinion. There's another way to read that statement, but I'm sure you can figure it out.
Even so, the Court's guidance is not particularly detailed: "it remains true, that at this very preliminary stage of the litigation, the proponent of the alleged trade secret is not required, on pain of dismissal, to describe it with the greatest degree of particularity possible, or to reach such an exacting level of specificity that even its opponents are forced to agree that the designation is adequate. We question whether any degree of specificity would satisfy that lofty standard. What is required is not absolute precision, but 'reasonable particularity.' "
You know that standard, like hand grenades and horseshoes: "close enough counts."
John, Now A High School Senior, Wants Your Advice About Becoming A Lawyer
Regular readers will remember "John," a high school student in his junior year who wrote last March asking for advice about becoming a lawyer, and thanks to you, he got some pretty solid advice. Over the weekend, he wrote back, seeking more input now that he's a senior and facing the critical choice of colleges. Consequently, I'm again seeking yours. Here's his email, with his name and other identifying information changed to protect his privacy, but nothing else altered (if you read his previous email, you'll see he's made some improvements with his English):
"Hello Mr. Williams,
It has been a while, hasn't it? How is your practice? I hope everything is running smoothly.
The last time we spoke it was regarding to college summer classes. I returned recently, and I had a great time. Thank you for advising me. I grew a lot as a person, and as a (future) lawyer. I took the American Litigation and Law class, at the University of Chicago , which worked on writing skills (not just legal writing, but in general), as well as the law. At the end of the class we had Mock Trials. The teacher of this class works in California, and Chicago. She is, apparently, a strong lawyer based on her record.
I am now in my last year of High School, at last!! I have finished taking a look at colleges that I am interested in, but it is hard to decide which college is my #1 choice for Early Decision (it increases one's chance at the college by signing this "contract." It states once signed, the student must attend the college if accepted).
My Top choices are:
Stanford (?) -- I like the school, but do they have a strong program for aspiring lawyers?
Claremont McKenna College (?) -- I do not know a lot about this school, but I heard many students from CMC are accepted to the top law schools
What would you consider a strong school which fosters a healthy environment to develop successful lawyers? Which school would provide a good foundation to get into the top Law Schools of the country? If five lawyers came knocking on your door seeking a position in your firm, each lawyer coming from the five undergrad schools listed, who would you pick (based on that alone)? Which of these lawyers would, most likely, go to the best law firm (based on the undergrad)?
If you feel there is something important worth mentioning, do not hesitate.
I feel misguided by reading college guidebooks, and even taking the tours. They take you through the best parts of the college. It is hard to get the truth out of colleges being in the position I am in. You have been there, and know more than I do about the selection process at Law School, and Law Firms.
Your help is appreciated,
P.S. Do you recommend any schools? Do you support Bush's nomination of Roberts for Chief Justice?"
Please jump in with comments to advise "John."
Four Years Later, We Remember And We Act
Earlier this evening, our local Bishop hosted a dinner at his home for the Luevano Foundation (free registration required). I was not surprised to hear much of the conversation steer away from that charity, and instead focus on Hurricane Katrina, and the steps we're taking given that our dysfunctional government apparently has not.
According to one hospital administrator at the dinner, area hospitals have taken in medical students to allow them to finish their residency. The University of California, Irvine, has done the same thing, and admitted (in a hurry) 50 California students that were enrolled in universities in the stricken area and headed that direction for school this fall, only to be turned back. A vice chancellor, he said that UCI admitted the students to get them into classes, and that the financial issues would be straightened out later. Law schools are doing the same thing.
We're taking care of our own. Each of us, in our own way, according to our own capacities - the way it should be.
Certainly insurance companies and the federal government will have the lion's share of the financial responsibility, and the consequences of the rebuilding of New Orleans, Biloxi, and other areas of Louisiana and Alabama will be spread among all of us to bear. But if there's one thing we've learned from our experience four years ago, it's how to come together.
Full Coverage of Katrina’s Devastation
In light of the government’s decision not to pursue a policy prohibiting the media from covering the recovery of bodies from Katrina-stricken areas, the responsibility for coverage in a respectful nature now falls on the media itself. While I support the freedom of the press to cover the disaster in its entirety, I believe that the media has an obligation to cover the most sensitive areas and issues with dignity and respect, lest they forget the impact these images continue to have on families, friends and colleagues.
Now is not the time for sensationalism, but for the media to recognize that the price of great freedom is great responsibility.
Has The Energy Star Lost It's Luster?
And you think the response to Hurricane Katrina has been slow? California has joined fourteen other states in a lawsuit against the Department of Energy over the DOE's alleged failure to update its energy efficiency standards for household and commercial appliances. California AG Bill Lockyer claims improving the standards would reduce reliance on foreign oil.
The suit alleges that the agency is up to 13 years behind schedule. In some instances, the suit claims, DOE has failed to issue any new efficiency standards in the last four years. The Energy Policy and Conservation Act provides for mandatory updates of these standards, the suit claims. The immediately previous DOE link notes that the government "periodically issues new standards or rulemakings for specific appliances." The rule making link is no more clear.
According to this Sacramento Bee article (free registration required) written by Andrew McIntosh, "The states, which say they represent a total of 118 million Americans, decided to sue after Energy Secretary Samuel W. Bodman ignored a joint letter they sent him in July. The letter asked his department to respect the law and adopt a binding schedule for implementing tougher minimum standards."
Last month, the Barton-Domenici Energy Policy Act of 2005 was signed into law, which gave appliance manufacturers tax incentives for producing more energy-efficient appliances in the US, delayed the time to get an Energy Star rating for nine months and added a requirement for DOE to match state rebates for purchasing appliances (did you know the government helped fund our purchase of appliances?). The appliance manufacturer's non-profit trade group website is here. Apparently, the lawsuit claims tax credits wouldn't be necessary if the DOE just promulgated the required standards.
You can decide whether we're going to pay the cost one way (taxes) or another (increased purchase price). The real question seems to be how we're going to save money on fuel prices.
No Blue Light Special For Wal-Mart
The City of San Marcos already has a Wal-Mart, and residents there were concerned with an attempt by the company to build another one. Residents got a referendum on the ballot, and Wal-Mart tried unsuccessfully to stop it. So it campaigned, and spent money to get voters to approve the store. Local residents tried hard to keep Wal-Mart to one store in town.
Residents voted, and San Marcos still only has one Wal-Mart. In the course of the election campaign and litigation battles, Wal-Mart lost steadily. The proponents of the referendum, however, wanted more.
They wanted their attorneys fees and costs back, so they asked the Court. Just yesterday, the Court said yes and granted those fees and costs to the residents who kept Wal-Mart out of town.
Now, the property will be developed for homes, and they can still shop at the (only) Wal-mart in San Marcos.